ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 April 2019 DOCKET NUMBER: AR20160008899 APPLICANT REQUESTS: an upgrade of his general discharge under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement * Jamestown Police Department records request * character 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. The punishment for his offense was not equitable. Many other Soldiers committed similar offenses or worse and received less punishment and were allowed to finish their enlistment. b. He hopes to shed some light on his story, which he ultimately hopes will result in approval of his request to upgrade his discharge. He grew up in a very rough area in California during the late 1980s and early 1990s, when the crack epidemic was at an all-time high and gangs were continuously fighting over territory. He was subjected to things a child should never have to witness and by the time he was a teenager he attended 6 funerals and most of his friends were in jail or under house arrest. He decided when he graduated in 2002 he would join the military. c. After Advanced Individual Training, he shipped out to Iraq and returned home after 12 months as a newly appointed specialist, entrusted to help his commander disband his unit. Word got out about the exceptional job he did with his unit and once reassigned, he was put into a staff sergeant position, promoted to sergeant, and deployed to Afghanistan for 15 months where he reenlisted and was reassigned to Fort Benning, GA. d. His trouble began when his command leadership was replaced by a set of young officers and a grizzled first sergeant, who from their first interaction treated him with doubt and disdain. They mocked him and treated him poorly, which in turn caused him to act out and become a bit insubordinate. e. He complained of a sharp pain in his right knee after a run, but was nonetheless forced to take and fail three Army Physical Fitness Tests in a row despite his injury. He wasn’t to the doctor where X-Rays and a bone scan confirmed he cracked his patella, proving his command wrong in the face of them trying to punish him while he was injured. They made his life a living hell and mocked his injuries, officially becoming the black sheep of the company. f. One night, to take the edge off, he ended up getting really drunk and smoked a little pot, but there was a drug test the very next day and he was eventually demoted to specialist and confined to 45 days restriction for the event. Despite completing his extra duty in the most pleasant manner, he couldn’t believe when he was told he was being discharged from the Army. There were Soldiers who came back from deployment hooked on all sorts of things, cocaine, heroin, painkillers, and all of them were able to complete their service. g. He was very distraught; his wife left him because she was embarrassed and he eventually got hooked on promethazine and ecstasy. He was emotionally numb and was being thrown out of the Army, the only thing he was ever good at. He decided he had to make a change for the better and learned to cope with the drastic changes in his life. He appealed his discharge, but was denied and later tried to use his GI Bill to go to school, but it took so long to get the school paid that he was failing most of his classes because he didn’t have the books to study. h. He felt so bitter about the way he was treated in the service and by the organizations known to help veterans. Now that 6 years have passed, he no longer feels that way. He has a new job, a new wife, 4 gorgeous kids, a beautiful home and a pretty comfortable life. Only lately he has been having physical problems stemming from his service time that have been hindering his health and he was encourage to write to the Board and share his story. He hopes the Board will consider his appeal because he has come to understand his actions were all a culmination of the mental strain and pressure he faced while in the service. 3. The applicant enlisted in the Regular Army on 6 January 2004 and served in Iraq from 9 January 2007 through 7 February 2008. 4. He accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) on 11 December 2008, for wrongfully using marijuana on 24 November 2008. 5. On 1 April 2009, the applicant underwent a mental health screening for administrative separation. There were no psychiatric conditions noted on review of the records and evaluation requiring disposition through medical channels. The applicant was deemed mentally responsible, able to distinguish right from wrong and adhere to the right. He was psychologically cleared for any administrative actions deemed appropriate by his command. 6. On 3 April 2009, he was notified by his commander of his intention to initiate action to separate him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14, paragraph 14-12c for the commission of a serious offense. The reasons for his proposed action were his abuse of the illegal drug marijuana. His commander recommended he receive a general discharge under honorable conditions. Within the notification he was advised of his rights to consult with counsel, submit written statements in his behalf, and have his case heard before an administrative board if he had 6 or more years of military service. 7. On 4 April 2009, he acknowledged having been advised of the basis for the contemplated action to separate him for misconduct under the provisions of Army Regulation 635-200, chapter 14, its effects, and the rights available to him. He requested representation by military counsel and he acknowledged he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him. He further acknowledged he understood that he may be ineligible for many or all benefits as a veteran if issued a discharge under conditions other than honorable. He did not submit statements in his own behalf. 8. In an undated memorandum, the approval authority directed the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 14c, for commission of a serious offense and directed the issuance of general discharge under honorable conditions. 9. His DD Form 214 shows he was discharged on 6 May 2009, under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (drug abuse). He completed 5 years, 4 months and 1 day of net active service. His service was characterized as general, under honorable conditions. 10. On 26 July 2010, he applied to the Army Discharge Review Board, requesting an upgrade of his discharge. The Board denied his request, determining his discharge was both proper and equitable. 11. The applicant provided a Jamestown Police Department, Jamestown, NY, Records Bureau request, dated 20 April 2016, which shows the applicant does not have a criminal record to include misdemeanors, felonies, and violations on file. 12. In the adjudication of this case, the Army Review Boards Agency clinical psychologist provided an advisory opinion on 3 January 2019, which states: a. Military records indicated the applicant’s early separation from service was based on wrongfully using marijuana on 24 November 2008. Punishment entailed reduction to Specialist/E-4 forfeiture of $957 pay for 2 months, extra duty for 45 days, and restriction to the dining facility and company area for 45 days. b. A review of military medical records indicated he was first evaluated by the Army Substance Abuse Treatment Program (ASAP) on 25 November 2008 following a positive urinalysis. He received treatment for alcohol and cannabis abuse from November 2008 to January 2009; however, treatment records were kept in a paper file. He was first evaluated by Behavioral Health on 8 December 2008. He reported having a difficult time due to military/financial stressors and endorsed vague suicidal ideation for the past several months, but denied having a plan or intent. He also endorsed feelings of depression, sleep disturbance, low appetite, anxiety, and irritability. c. A psychiatric evaluation dated 24 December 2008 indicated he reported constant harassment from superiors and combat stress symptoms stemming from two deployments. The medical provider noted he was not receiving treatment for behavioral health concerns since returning from Iraq (i.e. anxiety, depression, difficulty concentrating, irritability, hypervigilance, marital problems, financial problems, feelings of hopelessness, and suicidality) other than ASAP counseling. Other stressors entailed medical concerns to include headaches and being on profile for back and leg pain. It was also indicated the applicant had a recent suicide attempt 2 days ago in which he tried to overdose on medications. There was no record of hospitalization or further behavioral health appointments, other than ASAP, following the reported suicide attempt. d. A Mental Status Evaluation dated 1 April 2009 indicated he was psychiatrically cleared for administrative action and had no mental disease or defect that warranted disposition through medical channels. e. A review of VA medical records indicated an overall service connected disability rating of 30 percent for an Anxiety Disorder. In September 2018, he was referred to Behavioral Health for a PTSD assessment; however he failed to respond to mandated scheduling calls and missed/cancelled multiple appointments. f. A Jamestown Police Department Records Bureau Request dated 20 April 2016 indicated a records check was conducted and the applicant had no history of criminal history. g. The Army Review Boards Agency Clinical Psychologist was asked to determine if the applicant’s military separation was due to a diagnosis of PTSD or another boardable behavioral health condition. This opinion is based on the information provided by the Board, the DOD electronic medical record (AHLTA), and the Joint Legacy Viewer. Based on thorough review of available medical records, there is evidence he was separated from service for marijuana use, with no previous history of other misconduct. h. Based on a thorough review of available medical records, there is evidence that his misconduct, was more likely than not in response to exposure to military stressors, to include two combat deployments. There is no evidence of a PTSD diagnosis; however, there is evidence of in-service depressive symptoms, to include a suicide attempt, and a post-service diagnosis of an Anxiety Disorder with PTSD related symptoms- sleep disturbance, hypervigilance, and irritability. Anxiety related disorders can be associated with alcohol and substance and risk taking behaviors; therefore, there is a nexus between his behavioral health conditions and misconduct (marijuana abuse) that led to an early separation. i. It is likely the applicant’s misconduct leading to an early separation from service was related to his military experiences, to include combat and stressors related to his perceived harassment from his chain of command. In summary, there is sufficient evidence to support a change to his characterization of discharge. 13. On 4 January 2019, he was provided a copy of the advisory opinion and given an opportunity to submit comments, but did not respond. 14. 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, 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, on those conditions or experiences. 15. 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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. 16. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is sufficient evidence to grant relief. The applicant’s contentions, character statement, and the medical advisory opinion was carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record. The Board agreed there were behavioral-health concerns that mitigated the misconduct resulting with his discharge. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X : X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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 for the period ending 6 May 2009 showing his characterization of service as 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): Not Applicable 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. 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, 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, on 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. 3. 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 4. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. b. 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. c. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160008899 8 1