SAMR-RB 27 February 2017 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for AR20150015031 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 21 February 2017, in which the Board members unanimously recommended denial of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant partial relief. Therefore, under the authority of Title 1O, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by adding the following to his DD Form 214, for the period ending 12 October 2007: a. Item 12, delete "SEE BLOCK # 18," and replace with "0000/03/24." b. Add to item 18, "SERVICE IN AFGHANISTAN 20040115 - 20040508." 3. 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 his dishonorable discharge. 4. Request necessary administrative action be taken to effect the correction of records as indicated no later than 27 June 2017. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Encl .t!. d,_ _ Deputy Assistant Secretary of the Army (Review Boards) CF: ( ) OMPF Printed on $Recycled Paper BOARD DATE: 21 February 2017 DOCKET NUMBER: AR20150015031 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ __x______ __x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 21 February 2017 DOCKET NUMBER: AR20150015031 BOARD DETERMINATION/RECOMMENDATION: 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 for correction of the records of the individual concerned. __________x_______________ CHAIRPERSON 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. BOARD DATE: 21 February 2017 DOCKET NUMBER: AR20150015031 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests: * upgrade of his dishonorable discharge (DD) * correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his deployment to Afghanistan * to personally appear before the Board 2. The applicant states, in effect: a. His DD Form 214 does not reflect his deployment to Afghanistan, nor does it show this service was honorable. Correction of these errors is the right thing to do. b. He was in the Army for 6 years and the highest rank he held was specialist (SPC)/E-4. He includes a summary of his service. c. Regarding his court-martial, he essentially states: (1) On his return from Afghanistan, his company commander referred him to mental health because he was not acting normally (i.e., he was not paying attention and not completing tasks, was confrontational, and was acting confused). He initially refused to go to mental health, but finally went at the end of June after receiving a direct order. (2) He saw a doctor, who prescribed Wellbutrin [used for treating depression]. The doctor diagnosed him with post-traumatic stress disorder (PTSD), and attention-deficit/hyperactivity disorder (ADHD). On a return visit, he told the doctor the medications were not working, so the doctor increased his dosage. (3) Around the 2nd week of July, he saw the doctor again and complained the medication was not helping. The doctor told him to continue taking Wellbutrin and prescribed additional medications. As a result of the medications, he was unable to sleep. (4) The 14th of July 2004, was the worst day of his life. He came home around noon that day, and as he entered his military housing unit, three "gangbangers" from Staten Island, NY, were sitting on his couch. He did not see his wife, and was wondering where she was when he heard screaming from an upstairs room. There he witnessed a former friend, a fellow Soldier who had been discharged from the Army for drug use, raping his 15-year-old sister-in-law. His former friend jumped out of bed and grabbed his gun. As the applicant turned to go down the stairs, his gang-member friends pointed their guns at him. His former friend put a gun to the applicant's head and, while waving papers containing the names and addresses of his family, he said, "If you say anything I will kill you and your family, and I mean it!" The applicant still has nightmares about this. (5) He did not know what to do, and had no idea where his wife had gone. They grabbed him and forced him to watch as they raped his sister-in-law numerous times. He finally escaped and went back to Fort Drum. He did not tell anyone, and he did not know what to do. When he returned home later that day and saw his wife and sister-in-law, he was unable to say anything. He decided to end his life by taking more than 100 capsules of Strattera [used to treat ADHD] and Wellbutrin. His suicide attempt, however, was unsuccessful. (6) A week later, his sister-in-law turned 16 years of age, and she told him she was pregnant. They both wanted to tell someone, but they feared reprisal from the gang. He subsequently admitted to a crime he never committed because he was scared and wanted to protect his family. (7) He has had a number of traumatic things happen to him, to include falling out of a car, being in a car accident, and sustaining burns. What happened in Afghanistan is hard to talk about, as was seeing a loved one raped. He just wants his life back, and could use Department of Veterans Affairs (VA) benefits to obtain behavioral health care. At present, he is having problems obtaining those benefits. 3. The applicant provides a VA Form 21-4138 (Statement in Support of Claim). CONSIDERATION OF EVIDENCE: 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 Army Board for Correction of Military Records (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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 23 August 2001. Following initial training, he was awarded military occupational specialty (MOS) 89B (Ammunition Specialist). He served continuously through a reenlistment, and was promoted to SPC effective 23 August 2003. 3. He was reduced to private first class on 17 December 2004. His official military personnel file (OMPF) is void of any documentation explaining this reduction. 4. While assigned to Fort Drum, NY, he was tried by a general court-martial. General Court-Martial Order (GCMO) Number 9, dated 2 November 2005, issued by Headquarters, Fort Drum, shows: a. Four violations of the Uniform Code of Military Justice (UCMJ): * committing carnal knowledge with JLH * committing sodomy with JLH, a child under 16 years of age * having sexual intercourse with a woman not his wife on various occasions * violating a lawful command to have no contact with JLH on various occasions b. The sentence was adjudged on 28 March 2005, and consisted of a DD, 3 years of confinement, forfeiture of all pay and allowances, and reduction to private (PV1)/E-1. c. On 2 November 2005, the court-martial convening authority approved the sentence, and directed all but the DD to be executed. 5. On 26 December 2006, the U.S. Army Court of Criminal Appeals affirmed the findings and sentence. 6. GCMO Number 94, dated 4 May 2007, issued by Headquarters, U.S. Army Armor Center and Fort Knox, showed the sentence was finally affirmed. As Article 71(c) had been complied with, the DD was ordered duly executed. 7. The applicant was discharged accordingly on 12 October 2007. His DD Form 214 shows he completed 3 years, 8 months, and 11 days of active service, with lost time from 28 March 2005 to 6 September 2007 (2 years, 5 months, and 10 days). a. Item 12f (Foreign Service) has the entry, "SEE BLOCK #18." b. In item 18 (Remarks) it states, "SOLDIER SERVED IN AN IMMINENT DANGER PAY AREA: COUNTRY AND EXACT DATES UNKNOWN." c. He was awarded or authorized the Army Commendation Medal, Army Good Conduct Medal (1st Award), National Defense Service Medal Global War on Terrorism Expeditionary Medal, and Army Service Ribbon. d. The separation authority is Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 3 (Character of Service/Description of Separation). e. The character of service is shown as DD and the narrative reason for separation is stated as being court-martial, other. 8. On 29 June 2016, the Case Management Division (CMD), Army Review Boards Agency (ARBA) requested the applicant provide medical documentation to support of his claim of having a behavioral health issue. He did not submit a response. 9. An email from the Defense Finance and Accounting Service (DFAS), dated 24 January 2017, affirmed the applicant received Hostile Fire/Imminent Danger Pay (HF/IDP) and Combat Zone Tax Exclusion (CZTE) for Afghanistan during the period 15 January 2004 through 8 May 2004 (a period of 3 months and 24 days). 10. On 24 October 2016, the ARBA psychiatrist provided a medical advisory. a. The applicant enlisted in the Army on 23 August 2001 in MOS 89B. He reports that, while in the Army, he was deployed to Afghanistan from January to June 2004. On 12 October 2007, he was discharged from the Army with a DD under the provisions of AR 635-200, chapter 3. Prior to his discharge, he was incarcerated for about 2 years following his court-martial conviction for sex-related offenses and violating a superior officer's order. He is now applying to the ABCMR to have his service in Afghanistan added to his DD Form 214, and to upgrade his character of service. b. The ARBA psychiatrist was asked to determine if, at the time of the applicant's separation, he met the diagnostic criteria for PTSD or any other boardable behavioral health (BH) condition. If PTSD, or other boardable BH condition, is found, ascertain whether there was a nexus between the BH condition and the misconduct leading to his adverse discharge. The ARBA psychiatrist reviewed the applicant's ABCMR application, his separation documents, and his Department of Defense (DOD) electronic medical record (Armed Forces Health Longitudinal Technology Application (AHLTA)). ARBA requested the applicant to provide supporting medical documentation, but he did not respond. c. His AHLTA record is void of any BH-related medical notes. Additionally, there is no documentation indicating he met the criteria for PTSD or any other BH condition at the time of his separation. Further, there is no evidence he failed medical retention standards, as outlined in AR 40-501 (Standards of Medical Fitness), during his active service. d. The ARBA psychiatrist found no evidence of PTSD or any other BH condition in his military records, and the applicant provided no post-service medical records to support his claim. Based on the currently available information, there is insufficient evidence to show the applicant suffered from any BH condition while in the military. 11. On 26 October 2016, CMD sent the applicant a copy of the medical advisory for review and comment. He did not provide a response. REFERENCES: 1. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. 2. AR 635-200 prescribes the policy and procedures for enlisted separations. 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. c. A DD is issued pursuant only to an approved sentence of a general court-martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. 3. 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 applications from former service members administratively discharged under other than honorable conditions, and who have been diagnosed with post-traumatic stress disorder (PTSD) by a competent mental health professional. The Boards were to determine if it would be appropriate to upgrade the characterization of the applicant's service based on the revised PTSD criteria, detailed medical considerations, and mitigating factors. 4. BCM/NRs are not courts, nor are they investigative agencies. Therefore, the basis for Board determinations should be a thorough review of the available military records, and the evidence provided by each applicant on a case-by-case basis. When determining if PTSD or PTSD-related conditions were the causative factor for an applicant's misconduct, and whether such conditions warrant an upgrade, the following factors were to be carefully considered: * was it reasonable to determine that PTSD or PTSD-related conditions existed at the time of discharge? * did the applicant's record contain documentation of the occurrence of a traumatic event during the period of service? * did the applicant's military record contain documentation of a diagnosis of PTSD or PTSD-related symptoms? * did the applicant provide documentation of a diagnosis of PTSD or PTSD-related symptoms rendered by a competent mental health professional representing a civilian healthcare provider? * was the applicant's condition determined to have existed prior to military service? * was the applicant's condition determined to be incurred during or aggravated by military service? * did mitigating factors exist in the applicant's case? * did the applicant have a history of misconduct prior to the occurrence of the traumatic event? * was the applicant's misconduct premeditated? * how serious was the misconduct? 5. Although DOD acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge, it is presumed that they were properly discharged based upon the evidence that was available at the time. a. Conditions documented in the record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service. b. Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of under other than honorable conditions. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. 6. AR 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribed policies and procedures for the completion of DD Form 214. Item 12f will show all foreign service completed during the period covered by the DD Form 214. Item 18 for an active duty Soldier deployed to a foreign country with his or her unit during their continuous period of active service, enter the statement "SERVICE IN (name of country deployed) FROM (inclusive dates for example, YYYYMMDD-YYYYMMDD)." 7. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR). Paragraph 2-11 contains guidance on ABCMR hearings and it states that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. By regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record, including independent evidence he provided, is sufficient to render a fair and equitable decision at this time. 2. The applicant requests an upgrade of his DD based on clemency. The evidence of record confirms he was convicted by a general court-martial on 28 March 2005. a. He had been charged with committing multiple offenses punishable under the UCMJ. A punitive discharge was an available punishment. The type of court-martial convened to adjudicate the charges was appropriate, given the gravity of the charges. b. The appellate review was completed and the sentence was affirmed and ordered duly executed. His conviction and discharge were effected in accordance with applicable laws and regulations. c. Based on the foregoing, it appears all requirements of law and regulation were met, and that his rights were fully protected. 3. The law prohibits any redress of the finality of a court-martial conviction by this Board. The Board is only empowered to change the severity of the sentence imposed in the court-martial process, and then only if clemency is determined to be appropriate. a. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. b. He provides no evidence of an error or an injustice, or that he was in any way coerced to plea guilty during the court-martial process. 4. The advising psychiatrist found no evidence indicating the applicant suffered from a behavioral health condition during his military service. 5. The applicant served in Afghanistan from 15 January to 8 May 2004, a period of 4 months and 24 days. His DD Form 214 omitted this foreign service/deployment. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015031 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015031 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2