BOARD DATE: 15 January 2019 DOCKET NUMBER: AR20160012537 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. 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. BOARD DATE: 15 January 2019 DOCKET NUMBER: AR20160012537 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :DJH :RAS :TET DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 15 January 2019 DOCKET NUMBER: AR20160012537 APPLICANT'S REQUEST AND STATEMENT: 1. The applicant requests: a. his under honorable conditions (general) discharge be upgraded to an honorable discharge; b. his reentry (RE) code be changed to reflect a code that will allow him to rejoin the military without a waiver; and c. his narrative reason for separation be changed to medical reasons in lieu of misconduct, serious offense. 2. The applicant states during his time in the service he was among the best of the best, until he was overcome with post-traumatic stress disorder (PTSD). This caused him to make a bad decision while suffering under a mental condition he was unaware he had. He has now overcome his PTSD and wishes to rejoin the military and continue to serve his country honorably. THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records with no supporting document(s); the applicant states in support of his application he submitted his Department of Veterans Affairs (VA) rating decision. However, this document was not attached. 2. Evidence from the applicant’s service record and Department of the Army and Department of Defense records and systems: * DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 16 August 2010 * U.S. Army Medical Command (MEDCOM) Form 4038 (Report of Behavioral Health Evaluation), dated 23 August 2010 * Separation Documents with associated evidence * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Memorandum from Director, Case Management Division (CMD) to applicant, dated 16 March 2018 * Medical Advisory Opinion, dated 7 May 2018 REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish an error or injustice in the Army rating. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 3. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that 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. It is not an investigative body. 4. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. b. Chapter 14 of this regulation 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 absences 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 considered appropriate. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 5. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Table 3-1 provides a list of RE codes. * RE-1 applies to Soldiers completing their terms of active service who are considered qualified for enlistment if all other criteria are met * RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable – they are ineligible unless a waiver is granted 6. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD code to be entered on the DD Form 214. It identifies SPD code "JKQ" as the appropriate code to assign enlisted Soldiers who are administratively discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, based on misconduct – serious offense. 7. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army and Reserve Component Soldiers. The SPD/RE Cross Reference Table in effect at the time of the applicant's separation established the RE code of "3" as the proper RE code to assign to enlisted Soldiers separated with the SPD code of "JKQ." 8. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs), on 3 September 2014, 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. 9. The acting Under Secretary of Defense for Personnel and Readiness provided clarifying guidance on 25 August 2017, which expanded the 2014 Secretary of Defense memorandum that directed the BCM/NRs and DRBs to give liberal consideration to veterans looking to upgrade their less-than- honorable discharges by expanding review of discharges involving diagnosed, undiagnosed, or misdiagnosed mental health conditions, including PTSD; traumatic brain injury; or who reported sexual assault or sexual harassment. 10. The Under-Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. a. 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, Boards 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. b. 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. DISCUSSION: 1. While the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 27 January 2005. 3. The applicant served in Operation Iraqi Freedom from on or about 9 April 2007 through on or about 2 June 2008. 4. The applicant accepted non-judicial punishment (NJP) on 16 August 2010, under the provisions of Article 15 of the UCMJ, for: a. making an official statement with intent to deceive, that a senior noncommissioned officer had initialed an official form, which statement was false and known to be false, on or about 23 June 2010; b. making an official statement with intent to deceive, to a senior noncommissioned officer, that you received an undergraduate degree, which statement was false and known to be false, on or about 2 August 2010; c. making an official statement with intent to deceive, to a senior noncommissioned officer, that you did not turn in an Air Assault school request, which statement was false and known to be false, on or about 2 August 2010; d. making an official statement with intent to deceive, to a superior officer, by representing that you received an undergraduate degree, which statement was false and known to be false, on or about 5 August 2010; and e. wrongfully and falsely altering his Enlisted Record Brief (ERB) in words and figures as follows: deployment to Afghanistan, Afghanistan Campaign Medal, biology degree, APFT score/dated, and marksmanship qualification, such conduct being prejudicial to good order and discipline, on or about 1 May 2010 and on or about 24 June 2010. 5. The applicant was reduced in grade from sergeant (SGT) to specialist (SPC). 6. A MEDCOM Form 4038 shows he underwent a behavioral health evaluation for misconduct on 23 August 2010. The licensed medical provider notes his behavior to be normal and he was fully alert and oriented. His affect and mood were appropriate and he had the mental capacity to understand and participate in proceedings deemed appropriate by his command. He was mentally responsible and met medical retention requirements. The examiner further noted: a. He was diagnosed with adjustment disorder with mixed disturbance of emotions and conduct, alcohol dependence and antisocial traits. b. He had been screened for mTBI [mild traumatic brain injury] and PTSD in accordance with the applicable regulatory guidance. The Soldier reported symptoms of PTSD and TBI when screened; however, he is thought to be unreliable in his report of symptoms as he has been markedly inconsistent in his reporting of symptoms in his medical record with no previous report of these symptoms despite numerous contracts with behavioral health providers. Additionally, the service member has lied multiple times on official documents and to providers about his mental health status and history. 7. The applicant's immediate commander notified him, on or about 7 September 2010 of his intent to separate the applicant under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct, commission of serious offense. His commander cited his making false official statements with the intent to deceive, altering his ERB in the attempt to defraud the Army. He recommended he receive a under honorable condition (general) discharge. The applicant acknowledged receipt on the same date. 8. The applicant consulted with legal counsel on 9 September 2010 and was advised of the basis for the contemplated separation action for commission of a serious offense. The applicant: * waived counsel * waived consideration of his case by an administrative separation board and/or personal appearance before a board * elected not to submit a personal statement in his own behalf * acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him * understood he could be ineligible for many or all benefits as a veteran under Federal and State laws in the event he was issued a discharge under other than honorable conditions 9. The applicant's immediate and intermediate commanders both recommended he be separated, with the requirement for a rehabilitative transfer being waived, and he be issued a general discharge. 10. The separation authority approved the recommended discharge, waived the requirement for a rehabilitative transfer, and directed the issuance of an under honorable conditions (general) discharge. 11. The applicant was discharged on 17 September 2010. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - serious offense. His service was characterized as under honorable conditions (general). He was credited with 4 years, 5 months, and 13 days of net active service. 12. The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time. There is no indication of procedural errors which would have jeopardized his rights. All requirements of law and regulation were met, his rights were fully protected throughout the separation process, and his discharge accurately reflects his overall record of service. 13. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge. The ADRB determined he was properly and equitably discharged and denied his request on 8 July 2011. 14. A memorandum from Director, CMD to applicant, dated 16 March 2018, requested the applicant provide medical documentation in support of his contention of a mental health condition or PTSD. He did not respond. 15. In connection with the processing of this case, an advisory opinion was obtained on 7 May 2018 from the Army Review Boards Agency (ARBA) Clinical Psychologist. a. A review of the VA medical records through the Joint Legacy Viewer revealed an 80% service-connected disability rating with a problem list indicating other recurrent depressive disorders, opioid use, tobacco use, obstructive sleep apnea, unspecified insomnia, history of depression, and PTSD. b. After reviewing the available documentation, the advisory official opined his misconduct was for his own advantage and appeared planned. Therefore, based on the information, the applicant did not have any mitigating medical or behavioral health condition(s) for the offenses which led to his separation from the Army. There is no evidence of a medical disability or condition which would support a change to the character or reason for the discharge. 16. A copy of the advisory opinion was forwarded to the applicant on or about 8 May 2018, for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond. 17. The Board should consider the applicant's statement in determining whether to grant relief on the basis of equity, injustice, or clemency grounds in accordance with the Under-Secretary of Defense for Personnel and Readiness guidance. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160005706 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160012537 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2