ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 February 2019 DOCKET NUMBER: AR20160010099 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) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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, now a deceased former service member (FSM), initially applied to the Board requesting upgrade of his discharge on 22 May 2016, and in the intervening period prior to the adjudication of his case, took his own life on 3 July 2017. 3. The FSM stated: a. His discharge should be upgraded to honorable because he was forced out of the Army and given wrongful nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ). b. He was made a scapegoat by his chain of command and requested discharge due to the daily torment by his section sergeant and platoon sergeant. He went to his chain of command for assistance, but that failed to work, so he was forced into accepting NJP and a general discharge. b. He was hospitalized on 16 May 1988 and misdiagnosed while in the hospital; he had no behavioral issues. He does not have his military records, but this all should be documented in them. 4. The FSM enlisted in the Regular Army on 25 October 1984. 5. His records contain numerous DA Forms 4856-R (General Counseling Form) which show he received counseling on the following dates under the following circumstances: * failure to repair at three formations on 19 May 1987 * Preventive Maintenance Checks and Services deficiencies resulting in failure of vehicle inspection on 15 October 1987 * failure to follow instructions on 9 December 1987 * violation of the safety standard operating procedures during a weapons drill on 9 December 1987 * unsecured equipment in vehicle during inspection on 10 December 1987 * leaving his place of duty on 7 March 1988 6. His records contain multiple DA Forms 4187 (Personnel Action) which show his duty status was changed on the following dates in the following manner: * from present for duty to absent without leave (AWOL) on 10 March 1988 * from AWOL to hospital on 14 March 1988 * from hospital to present for duty on 23 March 1988 7. The complete facts and circumstances surrounding the FSM’s hospitalization are unknown. His available military records do not contain documentation pertaining to his hospitalization. 8. He accepted NJP on 18 April 1988 for: * being derelict in the performance of his duties on or about 10 March 1988 in that he negligently failed to notify his chain of command that he was admitting himself into the hospital * failing to go at the time prescribed to company formation at Kimbro Pool, his appointed place of duty, on or about 9 March 1988 9. On 8 June 1988, the FSM’s immediate commander notified him of his intention to initiate action to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14 for a pattern of misconduct. He recommended the FSM receive a general discharge under honorable conditions and advised him of his rights. 10. On 8 June 1988, the FSM acknowledged receipt of the notification and on 16 June 1988, acknowledged he was afforded the opportunity to consult with appointed counsel and declined the opportunity. He did not submit statements in his own behalf and acknowledged he understood he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him. 11. On 16 June 1988, the approval authority directed the FSM’s discharge from the Army under the provisions of Army Regulation 635-200, chapter 14, due to a pattern of misconduct and waived the requirement for rehabilitative efforts. He directed the issuance of a General Discharge Certificate. 12. The FSM’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged accordingly on 28 June 1988, after 3 years, 8 months, and 4 days of net active service with lost time from 10 March 1988 through 13 March 1988. 13. In the adjudication of this case, the Army Review Boards Agency (ARBA) clinical psychologist provided an advisory opinion on 21 December 2018, which states: a. On 22 May 2016, the FSM requested an upgrade his discharge based on wrongful NJP and misdiagnosis. He contended he was tormented by his immediate leadership resulting in erroneous counseling statement, which lead to the NJP and his request for discharge. He argued he was misdiagnosed during a psychiatric hospitalization while in-service and that his mental health was not linked to the mistreatment he was suffering. Of note, medical records indicate the FSM committed suicide on 3 July 2017. b. As the Department of Defense electronic medical record (AHLTA) was not in use at the time of his service, there were no medical records for review. There were no medical records contained in the National Archives and Records Administration file for review and the FSM did not provide any medical records or other documents to support the existence of a behavioral health condition while on active duty. c. A review of Department of Veterans Affairs (VA) medical records indicate the FSM’s first contact with behavioral health was in September 2000 after his wife expressed concern for anger and stress management. The FSM referenced a 1988 active duty psychiatric hospitalization for violent and homicidal dreams related to an inability to manage increasing “disgust and upset with the military.” Subsequent notes indicate he reported being bullied and targeted by “two high powered Sergeants,” serving as their scapegoat, leading to violent thoughts of running them over and an attempted overdose. He reported his chain of command gave him “an Article 15 to help me be discharged quicker” recognizing he was in distress. He did not follow up with behavioral health, but returned to the VA in September 2010 for one session to decrease claustrophobic symptoms when wearing his continuous positive airway pressure system (CPAP). d. In January 2012, he resumed care with increasing anxiety and panic associated with a cancer diagnosis. He remained in care through April 2017 with symptoms evolving from anxiety and depression in reaction to health, family, and financial stress to significant mental health issues. As his condition worsened, providers determined the foundation of his anxiety and depression was not external stressors, rather the mistreatment he experienced while in-service. e. He was hospitalized in July 2013 with suicidal thoughts and continued to struggle with these until his death by suicide. Although he was never diagnosed with post-traumatic stress disorder (PTSD), he was enrolled in a PTSD program and received trauma treatment. He committed suicide on 3 July 2017 by self-inflicted gunshot wound to the head, verified by VA records noting a death certificate on file. The last recorded diagnoses were major depression, moderate, recurrent; generalized anxiety disorder; and panic disorder without agoraphobia. f. Based on a thorough review of available medical records, there is evidence the FSM was mistreated by leadership while in-service. VA records document a consistent report of abuse and development of anxiety and depression resulting in at least one psychiatric hospitalization while in-service and one post-service. Although he was not formally diagnosed with PTSD, he underwent treatment used for this condition and providers referenced the abuse as an identified “trauma” more likely than not underlying his worsening mental health ultimately leading to suicide. Given all the above, the record reasonably supports the presence of a behavioral health condition that would partially mitigate the misconduct; specifically the failure to report, failure to follow instructions, and leaving his appointed place of duty. 14. A copy of the advisory opinion was sent to the applicant’s last known address on 9 January 2019, to provide an opportunity to submit comments, but no response was received from his next of kin. 15. 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. 16. 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. 17. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) 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 and upgrade the FSM’s discharge based on medical documents and the applicant’s statement. 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 28 June 1988, 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 (Personnel Separations – Enlisted Personnel) 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 ABCMR Record of Proceedings (cont) AR20160010099 8 1