ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 February 2019 DOCKET NUMBER: AR20160012351 APPLICANT REQUESTS: * upgrade of her under other than honorable conditions discharge to under honorable conditions (general) * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in lieu of DD Form 149 (Application for Correction of Military Record) 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 (ABCMR) 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: * she believes the punishment she received was improper for her particular offense * she was not adequately rehabilitated or given the help and support she needed at the time from her superiors * she was a victim of prejudice and unfair judgement from officers in her unit which shows how deployment has played a negative roll in her life since her discharged 3. The applicant also stated she is providing as supporting evidence medical records showing a diagnosis of post-traumatic stress disorder (PTSD), medical documents showing issues she was having at the time, and a letter summarizing evidence and support in her own worlds; however, these documents were not received with her application. 4. The applicant enlisted in the Regular Army on 12 August 2002. Her records show she served in Kuwait/Iraq. 5. The applicant's records contain three DA Forms 4856 (Developmental Counseling Form) showing she was counsel on three separate occasions for malingering and missing formations. 6. On 5 November 2004, the applicant was found guilty by a summary court-martial of wrongful use on marijuana on 8 September and 7 October 2004. 7. On 21 January 2005, the applicant's immediate commander informed her that she was initiating action to separate her from the Army under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for commission of a serious offense. The commander stated the reason for the proposed separation action was that the applicant had tested positive for wrongful use of marijuana on three occasions. The applicant was also advised of her right to: * consult with legal counsel * request a hearing before an administrative separation board or submit written statements instead of requesting board proceedings * waive her rights in writing 8. On 21 January 2005, the applicant consulted with legal counsel and she was advised of the basis for the contemplated separation action for commission of a serious offense. She acknowledged she understood she may expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to her. She also acknowledged she understood that if she received a character of service of less than honorable, she may apply to the Army Discharge Review Board (ADRB) or this Board for an upgrade of her discharge; however, she realized that an act of consideration by either board did not imply her discharge would be upgraded. 9. On 24 January 2005, the applicant's immediate commander officially recommended her separation with service characterized as under other than honorable conditions. 10. On 28 January 2005, the separation authority reviewed the separation packet pertaining to the applicant and directed the referral of her case to an administrative separation board to determine whether she should be discharged prior to the expiration of her term of service and, if so, to recommend a characterization of service. 11. On 2 March 2005, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for wrongful use of marijuana on 2 January and 31 January 2005. 12. On 3 March 2005, an administrative separation board convened and unanimously recommended the applicant's separation with service characterized as under other than honorable conditions. 13. On 10 March 2005, the separation authority approved the applicant's separation action under the provisions of Army Regulation 635-200, paragraph 14-12c with her service characterized as under other than honorable conditions. 14. The applicant was discharged on 17 March 2005. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms she received a characterization of service of under other than honorable conditions. Her DD Form 214 also shows she served in Kuwait/Iraq from 6 January 2004 to 11 January 2005. 15. The ADRB denied the applicant's request for an upgrade of her discharge on 29 December 2009 and on 7 March 2011. 16. During the processing of this case, a medical advisory opinion was obtained from the Army Review Boards Agency (ARBA) psychiatrist. It states: a. The medical review is for medical condition(s) not considered during separation processing, specifically: (1) Does available record reasonably support PTSD or another boardable behavioral health condition existed at the time of the applicant's military service? (2) Did these conditions fail medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness) warranting a separation through medical channels? (3) Is this condition(s) a mitigating factor in the misconduct that resulted in the applicant's discharge from the military? b. Information reviewed includes the applicant's ABCMR application, her electronic military personnel records, her electronic military medical record, and the Department of Veterans Affairs (VA) electronic medical record. No civilian medical documentation or hard copy military medical records were provided for review. c. There is no documentation of any behavioral health-related symptoms, behaviors or conditions in either the applicant's military personnel or military medical records. There is no indication that she failed to meet military medical retention standards in accordance with Army Regulation 40-501. d. Review of the VA electronic medical record indicates the applicant has received a behavioral health-related diagnoses from the VA (alcohol dependence). e. The applicant did not submit any civilian medical documentation for consideration and/or review. f. Based on the available information, it is the opinion of the ARBA's psychiatrist that there is insufficient evidence at this time to support the applicant's contention that her misconduct and resulting under other than honorable conditions discharge were the result of PTSD. g. In accordance with the 3 September 2014 Secretary of Defense Liberal Guidance Memorandum, the applicant's military records do not support the existence of any boardable behavioral health condition, including PTSD, at the time of discharge. Her military records indicate she did meet medical retention standards. There is insufficient evidence to support the existence of a mitigating behavioral health condition at the time of the applicant's misconduct or discharge. 17. The medical advisory opinion was provided to the applicant to allow her the opportunity to provide additional evidence or a rebuttal. She did not respond. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. Two Board members agreed the misconduct was not mitigated by service connected medical conditions. The dissenting voter determined leniency was appropriate to upgrade the discharge to under honorable conditions. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : :X : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :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. ___________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. 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 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 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 included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged under this chapter. b. Paragraph 3-7b provides that 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. 3. As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis and treatment of PTSD, Department of Defense (DOD) acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge. It is also acknowledged that in some cases, this undiagnosed condition of PTSD may have been a mitigating factor in the Soldier's misconduct that served as a catalyst for their discharge. Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period of time. 4. In view of the foregoing, 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 under other than honorable conditions 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. 5. Although the DOD acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge, it is presumed that they were properly discharged based upon the evidence that was available at the time. Conditions documented in the record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service. 6. Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of under other than honorable conditions. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. 7. 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 (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. 8. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to DRBs and 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, 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. 9. Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record. Paragraph 2-11 provides 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) AR20160012351 6 1