ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 8 January 2019 DOCKET NUMBER: AR20160012134 APPLICANT REQUESTS: * Change character of service from under other than honorable conditions to general discharge under honorable conditions * Personally appear before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Online Application for Correction of Military Record * Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 7 July 2015 * Three letters of support * Standard Form (SF) 50 (Notification of Personnel Action), dated 11 January 2015 * Headquarters, 19th Theater Support Command memorandum, dated 7 April 2005, Subject: Request for Discharge in Lieu of Trial by Court-Martial [applicant] * Orders Number 103-0002, dated 13 April 2005 * DD Form 2648 (Pre separation Counseling Checklist), dated 14 April 2005 * SGLV Form 8286 (Service Members' Group Life Insurance Election and Certificate), dated 6 April 2004 * DD Form 93 (Record of Emergency Data), dated 6 April 2004 * Enlisted Record Brief * DD Form 214 (Certificate of Release or Discharge from Active Duty), ending 23 April 2005 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090000669 on 14 May 2009. 2. The applicant states, in 2003, after coming back from the war in Iraq, and knowing, while there, his friends and brothers were ambushed and would not be coming home, he became very depressed. He began to drink daily; it was a very dark time, and alcohol was his best friend because it helped him forget. He understands he is not perfect and made mistakes, but he was a good Soldier and noncommissioned officer (NCO). It has now been over 11 years since his separation and he is no longer the same person; he is a great father to his four children, has been working with the government for 18 years, and has been serving as a Department of Defense (DOD) civilian for nearly 11 years. 3. Having had prior enlisted service in the Regular Army and the New York Army National Guard, the applicant reenlisted into the Regular Army on 18 January 2001. 4. He was deployed to Iraq from 23 February to 23 June 2003. He was promoted to sergeant/E-5, effective 1 December 2003. 5. The applicant's separation packet is not available for review, however, on 21 March 2005, his commander preferred court-martial charges against him for unknown violations of the Uniform Code of Military Justice (UCMJ). At some point prior to 7 April 2005, he requested discharge in lieu of trial by court-martial under the provisions of chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations); the separation authority approved his request on 7 April 2005. 6. He was discharged under other than honorable conditions on 23 April 2005. He was awarded or authorized the following: * Army Commendation Medal * Army Achievement Medal (3rd Award) * Army Good Conduct Medal (2nd Award) * National Defense Service Medal * Korean Defense Service Medal * NCO Professional Development Ribbon * Army Service Ribbon * Global War on Terrorism Expeditionary Medal * Global War on Terrorism Service Medal * Overseas Service Ribbon * Marksman Marksmanship Qualification Badge with Rifle Bar * Marksman Marksmanship Qualification Badge with Grenade Bar * Driver and Mechanic Badge with Driver-W Bar 7. On 30 July 2005, the applicant petitioned the Army Discharge Review Board (ADRB), requesting an upgrade to general under honorable conditions. The ADRB denied his request after finding his discharge was proper and equitable. 8. On 3 January 2009, he applied to the ABCMR to upgrade his discharge to general under honorable conditions. He argued he drank too much, was depressed, his wife was pregnant, and he was very lonely. His commander told him, if he accepted nonjudicial punishment, he might lose his rank, but the commander would try to retain him on active duty; the applicant elected discharge under chapter 10 instead. He since had recognized this was a wrong choice, and noted he had grown a lot. He cited post- service accomplishments. After evaluating the available evidence, the Board found it was insufficient to warrant an upgrade in character of service and denied his request. 9. The applicant provided supporting statements from former military supervisors and current coworkers; all speak highly of him and his former command sergeant major recommended treatment for the applicant's post-traumatic stress disorder (PTSD). 10. On 20 April 2018, the Army Review Boards Agency (ARBA) psychiatrist provided an advisory opinion. a. The ARBA psychiatrist reviewed the applicant's evidence, his military personnel and DOD electronic medical records, and those medical records available through the VA's Joint Legacy Viewer. b. The applicant's electronic medical record contained no documentation showing treatment for PTSD. Additionally, there was no indication he failed medical retention standards at any point during his term of active service. Based on the available information, there was insufficient basis to support the applicant's contention his misconduct was due to PTSD, or any other psychiatric disorder. 11. On 30 April 2018, the Case Management Division, ARBA, provided the applicant a copy of the advisory opinion for review and/or comment; he did not submit a response. BOARD DISCUSSION: After reviewing the application and all supporting evidence, the Board determined that relief was not warranted. Although the misconduct relating to the discharge is unknown, the Board found that because the medical advisory no evidence of the applicant ever being diagnosed with PTSD or other behavioral health condition which would possibly mitigate the misconduct, the Board found that granting any form of relief was not appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. SIGNATURE: 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. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a stated an honorable discharge was a separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense. A Soldier will not necessarily be denied an honorable discharge solely because of a specific number of convictions by courts-martial or actions under Article 15 of the UCMJ. An honorable discharge may be furnished when disqualifying entries in the Soldier's military record are outweighed by subsequent honest and faithful service over a greater period of time. It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service. b. Paragraph 3-7b stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 provided that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges had been preferred. A discharge under other than honorable conditions was normally considered appropriate. 2. 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 the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have 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. 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 Discharge Review Boards (DRBs) and Board for Correction of Military/Naval Records (BCM/NRs) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including Post Traumatic Stress Disorder (PTSD); Traumatic Brain Injury (TBI); 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 to 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. 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 (to include that provided by an applicant), 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. 5. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity; the applicant has the burden of proving an error or injustice by a preponderance of the evidence (i.e. the weight of the evidence presented is greater than 50-50; by contrast, criminal cases require a higher level of proof that is beyond a reasonable doubt, often interpreted to mean a more than a 95 to 99 percent chance of being correct). b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. It states further, in paragraph 2-11, 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. ABCMR Record of Proceedings (cont) AR20160012134 2 1