ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 May 2019 DOCKET NUMBER: AR20160015289 APPLICANT REQUESTS: in effect, his General, Under Honorable Conditions Discharge (GD) be affirmed by the ABCMR and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show award of the Combat Infantryman Badge (CIB). He also requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * personal statement * medical records * letters of support * Army Discharge Review Board (ADRB) Decision * Orders * letter from Department of Veterans Affairs (VA) FACTS: 1. The applicant states: a. His service exclusive of the period of prolonged absent without leave (AWOL) was honest, faithful and meritorious and of benefit to the Nation. He enlisted in January 2002. He deployed to Iraq and earned several awards. He fought alongside his brothers and did so honorably. He enlisted during in a period of war. As a result of experiencing combat at the age of 21 and worrying about my family, he began having mental health issues. Due to the stigma associated with post-traumatic stress disorder (PTSD) and mental health issues, he did not seek assistance for fear of being ridiculed so he tried to deal with it on his own. He learned, while he was away, his wife had been unfaithful and his mother had fraudulently overdrawn his bank account. This proved too much to handle and he went AWOL because he did not know what else to do or who to turn to. The penalty for having mental health issues on active duty is harsh. There will be no service treatment records for the issues he was having at the time because one could not seek help without suffering the consequences. He is currently on medication issued by VA. a. b. He realized he needed help and turned himself in and was sent to Fort Benning, GA. While at Fort Benning, he was diagnosed with severe anger, depression, and PTSD by a psychiatrist. A civilian psychiatrist diagnosed him with PTSD and several other issues. In dealing with his mental health issues, he did not realize he had not been discharged when he left Fort Benning as he was receiving TRICARE benefits so his whereabouts were fully disclosed. He worked a Job in Security Systems Service for 8 years. After he was diagnosed with mental health issues, and believing he was discharged, came the prolonged period of AWOL. c. The onset, nature, and severity of his psychiatric symptomatology did not occur until after he returned from Iraq. There is no other reason, other than the emotional effects of his tour in Iraq, his conduct would drastically change. He was excited to enter the military, be in the military, and excited to serve his country. He would ask that his hardship and suffering, which incurred during his combat tour, be carefully and sympathetically considered in evaluating my state of mind at the time of the prolonged AWOL period and reasonable doubt be resolved in his favor. He asks that the aforementioned compelling circumstances be sympathetically considered and it be found the bar to benefit entitlement does not apply, so that he continue to get the counseling and benefits needed to deal with his PTSD. The prolonged absence in excess of 180 days was not a deliberate choice, but a miscommunication and misunderstanding between himself and the Fort Benning Medical Personnel. He was not aware of his military status until he sought help from VA and he immediately sought to correct it. d. When he arrived at Ft Sill, OK, they saw he had been diagnosed with PTSD and told him he would be receiving a general discharge citing PTSD so he could receive the appropriate treatment. This did not happen. He did not take a less desirable discharge, he did what he was ordered to do. He was told by VA to apply to ADRB in order to receive Benefits. He immediately sought to correct it through ADRB. He did not realize the more appropriate route for this situation would have been the ABCMR. He is about to lose what benefits VA had originally awarded him for service connection PTSD because of a rule which says a period of AWOL in excess of 180 days is a bar to benefits. The ADRB agreed PTSD was the cause for the AWOL and upgraded his discharge to a general, under honorable conditions discharge (GD). He has been in prison in his head for 14 years. He is sorry he made this mistake but he harmed no one. He was not in the correct frame of mind as a 21 year old kid. He didn't know what to do. He thought the ADRB decision had fixed this. He was awarded 70 percent service- connected disability, but now VA is taking this away. He is not employed and will lose his home again. He has 3 sons and a wife who depend on me. He is trying hard to be a productive member in his home. He has included his CIB orders, his CIB was never put on his DD Form 214. The Army let me down in a big way and he has been punished. He will appear at his own cost and testify in person if needed. a. 2. On 30 April 2014, the applicant was charged with be absent without authority from on or about 15 November 2003 to on or about 15 April 2004 and from on or about 16 April 2003 to on or about 30 April 2014. 3. On 1 May 2014, after seeking counsel’s advice, the applicant requested discharge for the good of the service in lieu of trial by court-martial; he acknowledged he understood the offense he was charged with and his rights. 4. On an unspecified date, the appropriate authority approved the applicant’s request for discharge and directed be separated with an under other than honorable conditions (UOTHC) discharge and he be reduced to the lowest enlisted grade. 5. The applicant’s record is void of orders awarding him the CIB. 6. On 14 May 2014, the applicant was discharged in accordance with the appropriate authority’s decision. His DD Form 214 shows he completed 1 year and 10 days of net active service. The CIB is not listed on his DD Form 214 as an authorized award. 7. The applicant provides an order awarding a CIB; however, his name is not listed on the order. 8. On 27 October 2015, ADRB upgraded the applicant’s UOTHC discharge to a GD and restored his rank to private first class. 9. The applicant provides a letter from VA informing him of their intent to sever service and terminate his compensation benefits because his service is considered to be dishonorable for VA purposes due to AWOL for a continuous period of at least 180 days. The letter further stated although his discharge was upgraded by ADRB, VA does not recognize an honorable or GD issued by DRB intended to set aside a bar due to AWOL. 10. On 22 December 2016, the ABCMR obtained an advisory opinion from a Clinical Psychologist with Army Review Boards Agency (ARBA), who states, in part, based on the information available at this time, the applicant developed PTSD while on active duty. Because PTSD can be associated with avoidant behaviors, there is likely a nexus between the applicant’s PTSD and the misconduct (AWOL) which led to his UOTHC discharge from the Army. The applicant’s PTSD is considered mitigating for these offenses. A copy of the complete medical advisory was provided to the Board for their review and consideration. 11. On 27 December 2016, the applicant was provided a copy of the advisory opinion for comment or rebuttal. In response to advisory opinion, the applicant submits a statement in agreement with the advisory opinion and details his medical issues and issues with VA. 1. 12. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) states a Chapter 10 is a voluntary discharge request in-lieu of trial by court martial. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 13. In reaching its determination, the Board can consider the applicant's petition, his service record, medical advisory, and his statements in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief relating to discharge affirmed be denied. The applicant’s DD Form was previously changed to reflect a characterization of service as Under Honorable Conditions (General). Therefore, the Board found no error or injustice which would justify changing the record as it relates to the applicant’s administrative separation. The Board also found insufficient evidence provided by the applicant or within the military service record to show that the applicant was ever awarded the Combat Infantryman Badge. For that reason, the Board recommended denying that portion of the request as well. 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. 5/13/2019 X 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. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel, it states: a. A Chapter 10 is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and performance of duty for Army personnel. 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. 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 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 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- 1. 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. 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, 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. 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. 5. Pursuant to United States Code (USC) 38 and 5303(a) and 38 C.F.R. 3.12(c), a statutory bar to VA benefits exists when a former Servicemember was discharged or released under any of the following conditions: * as a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful orders of competent military authorities; * by reason of a sentence of general court-martial; * resignation by an officer for the good of the service; * as a deserter; * as an alien during a period of hostilities, where it is affirmatively shown that he or she requested release; * by reason of discharge under other than honorable conditions as a result of an AWOL for a continuous period of at least 180 days unless there exist compelling circumstances warranting the prolonged unauthorized absence. 6. The factors considered in determining the existence of compelling circumstances are: length and character of service exclusive of the AWOL; reason for going AWOL, including family emergencies, hardship, or as a result of combat wounds evaluated in terms of person’s age, cultural background, education level, and judgmental maturity; or, a valid legal defense exists for the absence that would have precluded the conviction for AWOL. a. An honorable or general (under honorable conditions) discharge issued by the ABCMR is final and conclusive on VA. The action of the board “sets aside any prior bar to benefits” imposed under 38 C.F.R. (statutory bar) or (regulatory bar). Only favorable action by the ABCMR will overcome a bar under 38 C.F.R. 3.12(c). a. b. A honorable or general discharge issued by the ADRB does not set aside a statutory bar to VA benefits. Despite a favorable ADRB determination, VA can still deny eligibility to benefits if the former Servicemember was discharged or released under one of the conditions listed under 38 C.F.R. 3.12(c).