ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 March 2019 DOCKET NUMBER: AR20160009243 APPLICANT REQUESTS: Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to: * upgrade his general under honorable conditions discharge to an honorable discharge * change or remove the narrative reason for separation * change the separation code APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * two self-authored statements * DD Form 214 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: * his prior service has matured him to be a great candidate as a correctional officer * his entire military career was stellar with the exception of his infraction * he has been punished for his transgressions * his discharge should be upgraded so he can begin his career with the Department of Corrections in Georgia 3. The applicant enlisted in the Regular Army on 3 October 2006. He deployed to Iraq from 4 June 2007 to 15 July 2008. 1. 4. He received adverse counseling for the following: * leaving his M4 Rifle and Night Vision Device in his wall locker * missing the 1430 initial manifest for the JFEX jump * being absent without leave (AWOL) from 5 to 9 March 2009 5. He underwent a psychiatric evaluation on 9 March 2009 and the psychiatrist diagnosed him as having an Adjustment Disorder, grief reaction. The psychiatrist cleared him for any administrative action deemed appropriate by command. 6. On 9 April 2009, the unit commander notified him of the proposed recommendation to discharge him for misconduct for commission of a serious offense under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c for commission of a serious offense. The unit commander stated the applicant was absent from his unit on 5 March 2009 and he was derelict in his duties when he failed to properly secure his M4 Rifle and Night Vision Device. The commander advised him of his rights. 7. The unit commander formally recommended separation under the provisions of Army Regulation 635-200, paragraph 14-12c with issuance of a general under honorable conditions discharge. 8. On 9 March 2009, the applicant indicated he was afforded the opportunity to consult with counsel. He elected to waive representation by counsel and did not submit a statement in his own behalf. 9. On 23 March 2009, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL from 5 to 8 March 2009 and for being derelict in the performance of his duties by failing to properly secure his M4 Rifle and Night Vision Device. 10. On 30 March 2009, he underwent a second psychiatric evaluation and was diagnosed as having an Adjustment Disorder with Mixed Disturbance of Emotions and Conduct (Primary Diagnosis) Bereavement without Complications. The psychiatrist recommended the following: * the applicant be administratively discharged as expeditiously as possible * the applicant's mental conditions were not disqualifying conditions that required a medical evaluation board * he was not cleared from a mental health point of view for continued Army service * a Chapter 5-17 discharge was recommended since the combined effects of the two clinical syndromes rendered him so dysfunctional * he was no longer suitable to remain in the Army * * the applicant was identified to be unfit for any further service in the Army at this time due his diagnosed mental conditions * he should not be issued any weapons, taken on any airborne training/operations, nor deployed * he would be treated by the undersigned on a weekly basis (or more if needed) until he would be discharged from the Army 11. On 14 April 2009, he acknowledged that he understood he was not entitled to an administrative separation board because either he had less than 6 years or active and reserve service at the time of separation; he had not been given notice that he was being considered for an under other than honorable conditions discharge, and was not being considered for separation under Chapter 15. He acknowledged that he had been given the opportunity to confer with counsel, and did not submit statement in his behalf. 12. On 14 May 2009, the Army discharged him from active duty under the provisions of Army Regulation 635-200, paragraph 14-12c misconduct, (serious offense). He completed 2 years, 7 months, and 8 days total active military service with lost time during the period 5 March 2009 to 8 March 2009. 13. His DD Form 214 shows the following entries: * item 24 (Character of Service) - "Under Honorable Conditions (General)" * item 25 (Separation Authority) - "AR 635-200, PARA 14-12C" * item 26 (Separation Code) - "JKQ" [Misconduct, Serious Offense] * item 27 (Reentry Code) - "3" * item 28 (Narrative Reason for Separation) - "Misconduct, (Serious Offense)" 14. On 11 August 2010, the Army Discharge Review Board denied his request for a change in the character and/or reason of his discharge. 15. In his self-authored statement, dated 15 April 2016, he stated: * he apologizes for all of his infractions that caused him to be kicked out of the Army * he wanted a second chance because he has become a more mature and humble adult * an upgrade of his discharge will allow him to use the Montgomery GI Bill to further his education in pursuing a career in law enforcement * he is sole provider for his family and an upgrade of his discharge would allow him to continue his career and receive degrees in Criminal Justice * 16. In his self-authored statement, dated 20 October 2016, he stated: * his entire military career was stellar with the exception of one infraction * he has matured since his discharge and has been punished enough for his infraction * he wants his narrative reason changed or removed along with the separation code changed * he also wants to further his education and to have a career so he can provide for his family 17. On 13 December 2018, a clinical psychologist within the Army Review Boards Agency (ARBA) opined: a. on 20 October 2016, the applicant requested that the ABCMR upgrade his discharge based on mental illness. b. the applicant contends he was experiencing adjustment difficulties, grief and depression in response to the death of his father during the time of misconduct; he will not be able to provide for his family nor further his education if the reason of his discharge is not changed; and he apologized for the infractions that cause him to get discharged and he has been punished for his transgressions. c. the applicant's military records indicate his early separation from the Army was based on him being derelict in the performance of his duties and going AWOL for 4 days d. he had no prior history of misconduct; however, on 5 May 2009, he refused to make a jump, missed a movement, and did not adequately secure his M4 rifle and night vision goggles in his wall locker, and went AWOL 5 to 9 May 2009. e. his mental status evaluation, dated 9 March 2009, indicated: * he was diagnosed with an Adjustment disorder, grief reaction * his symptoms of sadness, sleep disturbance, trouble eating, fatigue, and increased alcohol and tobacco use were in response to father's death * it was determined he had the mental capacity to understand and participate in proceedings, was mentally responsible, and met medical retention requirements f. his mental status evaluation, dated 30 March 2009, indicated: * he had a primary diagnosis of an Adjustment Disorder with Mixed Disturbance of Emotions and Conduct and Bereavement Without Complications * * his stressors included remaining in the Army, unresolved grief reactions due to his father's death, and family problems * his emotional reactions were expected to improve once he left the Army since the onset of his intensified depressive reactions occurred over the last three months since December 2008 * his diagnosis represented a recent temporary condition that started after his entry into the Army and subsequent 13-month deployment to Iraq as an ASV [Armored Security Vehicle] truck driver * his noted changes after deployment included his request for removal from jump status and making a suicidal gesture by hitting his brakes instead of gas pedal while contemplating driving off a road * he was placed on buddy watch status after returning from AWOL * he wanted to start psychotropic medications to help with sleep deprivation and to counter depressive symptoms that were attributed to grief and exposure to two IED explosions that hit his truck * his other concerns included family stressors and the ramifications related to the loss of their father and mother's death 8 years prior g. his mental status evaluation, dated 30 March 2009, also indicated: * his medical provider recommended administrative discharge * his medical conditions were not considered disqualifying conditions that required a Medical Evaluation Board (MEB) * he was recommended for a Chapter 5-17 discharge since the combined effects of the two clinical syndromes rendered him so dysfunctional that he was no longer suitable to remain in the Army * he was identified as unfit for any further service in the Army due to his diagnosed mental conditions * his duty limitations indicated he should not be issued any weapons, conduct airborne/training operations, or deploy * it was recommended that he be treated by a clinical psychologist on a weekly basis until his time of discharge from the Army h. he received 60 percent service-connected disability rating from the VA for Major Depressive Disorder. His VA records indicate he reported "After my dad died, I wasn't acting the same and mental health told me I should not have to have a weapon, but they tried to get me to qualify… I got placed on rear detachment and ended up going AWOL before a jump." i. the applicant's available medical records revealed there is evidence he was experiencing adjustment difficulties with depressive symptoms in response to the passing of his father. It was discussed that depression can be associated with avoidance behaviors (unauthorized absence), risk taking, and impulsivity. There is also supportive documentation from military in-service medical records and post-service from a. the VA, to support the diagnosis of Depression in addition to post-traumatic stress disorder (PTSD) stemming from deployment experiences. Depressive symptoms have continue to impact his level of functioning and overall sense of well-being to include the need for continued behavioral health treatment. Given his impairment and need for continued supportive services, it is likely that Depression mitigated the misconduct that led to his separation from active duty. In summary, there is sufficient evidence to support a change to his characterization and reason for separation. 18. The applicant provided a statement in conjunction with his application and a medical advisory opinion was provided with this case. The Board should consider this evidence in accordance with the published liberal consideration and equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting evidence the Board found that partial relief was warranted. Based upon the totality of the circumstances, the Board found that changing the Narrative Reason and the Separation Code was appropriate. However, the Board found that the characterization of service received at the time of discharge warranted no change. 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. 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: a. voiding his DD Form 214 for the period ending 14 May 2009, and b. issuing him a new DD Form 214 that contains the following entries: * Separation Authority – Army Regulation 635-200, Paragraph 5-3 * Separation Code – JFF * Narrative Reason for Separation – Secretarial Authority 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. SIGNATURE: X 3/26/2019 CHAIRPERSON Signed by 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. 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 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, conviction by civil authorities, desertion, or absence without leave. 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 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. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. b. Paragraph 3-7a states 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. 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, 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. 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. 1. 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.