IN THE CASE OF: BOARD DATE: 9 June 2015 DOCKET NUMBER: AR20140017567 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 the following: * an upgrade of his under other than honorable conditions discharge to a medical discharge due to Post-Traumatic Stress Disorder (PTSD) * a personal appearance before the Board 2. The applicant states: a. He was suffering from PTSD before his Army enlistment, after his period of service, and now. His representative at hearing coerced him into accepting responsibility for things he had no control over. He feels that ultimately sabotaged his case. He brought medical documents and a statement from his former commander to his hearing. He explained his situation and they ignored everything. Because he brought all proper documents, it feels like a cover-up when he had medical documents of his symptoms and statements. b. Injustice and abuse from his platoon sergeant triggered his pre-PTSD. He did not conceal his previous injuries to the military before his enlistment. He brought his history of PTSD to their attention. He believes it was a major factor in his discharge. He still has fears 20 years later. It's been more than 12 years and it has been hard attempting to locate witnesses because they are deployed. He has proven PTSD prevented him from performing his duties. c. He is a veteran and he has been wronged by his country and treated like the enemy on all fronts. He had attempted to appeal decisions on his upgrade. He keeps getting denied even though his case clearly shows PTSD caused his drastic exit. He has brought forth supporting documents, pre - and post-medical records showing PTSD and depression medications. He had followed his chain of command and has statements from his superiors stating he did and how he attempted to receive help but was hindered by the same guy tormenting him for no reason. This individual would always say that he [the applicant] was just a gangbanger and he was in the Army trying to recruit and that wasn't the case 14 years before 11 September. d. He has attended hearings and constantly reads that veterans with PTSD and an under other than honorable conditions discharge like his are finally receiving help, all 80,000 of them. Why can't he receive the help? They have the proof of his conditions of PTSD from then. Even the chain of command for Company A was removed during the seventh week of boot camp in May 2000 for what they did to him and other Soldiers. He then had the same thing occur to him at his duty station by his Platoon Sergeant Mxxxxxx. He will continue to write until the Board answers him or until it falls on deaf ears. 3. The applicant provides copies of the following: * Standard Form (SF) 93 (Report of Medical Examination) (second page) * Chemical Dependency Education diploma * Copies with Anxiety: Learning and Managing Group diploma * Criminal History Information * Maricopa Country Client Information Sheet COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: Counsel defers requests and statements to the applicant and provides no additional evidence. 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 the cases 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 sufficient bases to waive the statute of limitations. 2. The applicant provided a copy of an SF 93 (second page), dated 4 February 1999, which indicated he had sustained a gunshot wound at 16 years of age, had used marijuana, and had no psychological problems. 3. He enlisted in the Regular Army, in pay grade E-1, on 24 March 2000, for 3 years. He did not complete basic combat and advanced individual training for award of a military occupational specialty. 4. On 17 October 2000, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 5 to 14 September 2000. He did not appeal. 5. He was reported AWOL on 25 January 2001. He was apprehended by civil authorities and returned to military control on 14 June 2001. 6. On 28 June 2001, a DD Form 458 was completed by the Commander, Personnel Control Facility, Fort Sill, OK. The applicant was charged with one specification of being AWOL from 25 January through 14 June 2001. On the same day court-martial charges were preferred against him. 7. On 29 June 2001, after consulting with counsel, the applicant admitted he was knowingly, willingly, and voluntarily AWOL. He requested discharge, of his own free will, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10, for the good of the service – in lieu of trial by court-martial for charges being preferred against him. He acknowledged he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge and the result of the issuance of such a discharge. He waived his rights and elected not to submit a statement in his own behalf. 8. On 31 January 2002, the Unit Commander, Personnel and Support Battalion, recommended approval of the applicant's request and issuance of an under other than honorable conditions discharge. He stated that the applicant had become disillusioned with the military and retention of the applicant was not in the best interest of the Army. 9. On 8 February 2002, the Chief, Criminal Law Division, found no legal objection to further processing of the applicant's discharge in accordance with the unit commander's recommendation. 10. On 8 February 2002, the separation authority approved the applicant’s request and directed the issuance of an under other than honorable conditions discharge. 11. He was discharged accordingly in pay grade E-1 on 11 March 2002. He was credited with completing 1 year, 6 months, and 28 days of active service and time lost from 25 January through 13 June 2001. His service was characterized as under other than honorable conditions. 12. His record is void of any evidence he was diagnosed with PTSD or PTSD-related conditions prior to his entry on active duty, and/or during his period of service, and after his period of service. 13. He also provided copies of the following: * Chemical Dependency Education diploma, dated 11 February 2010 * Copies with Anxiety: Learning and Managing Group diploma, dated 9 February 2011 * Criminal History Information which detailed his charges from 1997 through 2008 for carrying a concealed weapon, disorderly conduct, operating a vehicle while intoxicated, AWOL, military desertion, possession of marijuana, theft, issuing bad checks, defrauding an innkeeper, and selling/transporting narcotic drugs * Maricopa County Client Information Sheet which shows on 16 April 2008 he was found guilty by a jury of selling and transporting narcotic drugs 14. On 22 November 2002 and 15 July 2014, the Army Discharge Review Board determined that he was properly and equitability discharged and denied his two requests for a change in the character and/or reason for his discharge. 15. Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. The regulations stated in: a. Chapter 10 - a Soldier who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for a 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 include the individual's admission of guilt. Army policy stated that although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate. b. Paragraph 3-7a - an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. c. Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 16. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, governed the evaluation of physical fitness of Soldiers who could be unfit to perform their military duties because of a physical disability. It stated the mere presence of an impairment did not, of itself, justify a finding of unfitness because of physical disability. 17. Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, in effect at the time, provided that for the separation of an individual found to be unfit by reason of physical disability, he/she must be unable to perform the duties of his officer, grade, rank, or ratings. Members with conditions, as listed in this chapter, were considered medically unfit for retention on active duty and were referred for disability processing. 18. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards and Service Board for Correction of Military/Naval Records to carefully considered the revised PTSD criteria, detailed medical consideration, and mitigating factors when taking actions on applications from former service members administratively discharged and who had 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. Liberal consideration would be given in petition for changes in characterization of service to service treatment record entries which documented one or more symptoms which met the diagnostic criteria of PTSD or related conditions. Liberal consideration would also be given in cases where civilian providers confer diagnoses of PTSD or PTSD-related conditions, when case records contained narratives that supported symptomatology at the time of service, or when any other evidence which could reasonably indicate PTSD or a PTSD-related disorder existed at the time of discharge which might had mitigated the misconduct that caused the under other than honorable conditions characterization of service. 19. Army Regulation 15-185 (ABCMR), paragraph 2-11, states applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing (personal appearance) whenever justice requires. DISCUSSION AND CONCLUSIONS: 1. With regard to an upgrade of the applicant's discharge to a medical discharge due to PTSD: a. He was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu by court-martial. He acknowledged the reason for his discharge and that he could be furnished an under other than honorable conditions discharge. He waived his rights and elected not to submit a statement in his own behalf. The separation authority approved his discharge and he was discharge accordingly on 11 March 2002. b. There is no available evidence and he provided none showing he was diagnosed with PTSD or PTSD-related conditions prior to, during, or after his period of active duty or PTSD prevented his satisfactory completion of his term of enlistment or would have supported his processing for a medical discharge through medical channels. His military records contain no evidence which would entitle him to an upgrade of his discharge to a medical discharge. c. Without evidence to the contrary, his administrative separation was accomplished in compliance with applicable regulations in effect at the time and the current version, with no procedural errors which would tend to jeopardize his rights. He was properly discharged in accordance with pertinent regulations with due process. Therefore, he is not entitled to the requested relief. 2. With regard to his request for a personal appearance before the Board, 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 and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not warranted to serve the interest of equity and justice in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ____X___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that 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. ABCMR Record of Proceedings (cont) AR20140017567 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140017567 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1