ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 4 April 2019 DOCKET NUMBER: AR20160015871 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to an under honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 28 June 1990 * Letter from Department of Veterans Affairs (VA), dated 16 May 2016 * Psychiatry Medical Records Progress Notes and Inpatient Discharge Plan, dated 18 May 2016 * Letter from Maryland Center for Veterans Education and Training, Inc., dated 20 May 2016 with allied documents * Personal letter, dated 17 February 2017 * Multiservice Progress Notes, dated 5 January 2015 * VA Hospital Discharge Summaries, dated 18 May 2016 * Psychiatric Consultation, Montgomery County Department of Correction and Rehabilitation, multiple dates FACTS: 1. The applicant did not file within the 3 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 states from his combat exposure and the infidelity of his former wife he developed post-traumatic stress disorder (PTSD). He believes that due to a lack of knowledge about his PTSD condition and the inconsideration of his chain of command who did not offer to help him, the incident occurred. He has been struggling from PTSD, depression, drug and alcohol addiction for 17 years and due to his type of discharge he is unable to get the proper help he needs. He asks the Board to help him and to take into consideration his unique circumstances. He feel that he did “good enough job while in the service for 9 years.” He states he is chronically homeless and mentally ill. He attaches some medical records and then provides locations where the Board can request records. [The Board is not an investigative body and will not request records from other sources on behalf of the applicant.] 3. After a brief period in the delayed entry program, the applicant enlisted in the Regular Army on 24 July 1990 for a 4-year period of service. The applicant reenlisted twice on 7 June 1994 and again on 25 July 1997. He was trained and qualified as a supply specialist. On 1 February 2006 he was promoted to the rank and pay grade of sergeant/E-5. 4. The Defense Manpower Data Center maintains the Desert Shield/Storm Data Base also known as the Gulf War Roster. It contains one record for each individual who participated in-theater from 2 August 1990 to 30 November 1995. A review of the Gulf War Roster shows the applicant served in Southwest Asia from 1 January 1991 to 31 May 1991. 5. A review of the applicant's DA Form 2-1 (Personnel Qualification Record), item 5 (Overseas Service), shows he served in Saudi Arabia from 8 January to 18 April 1991 6. On 12 November 1998, the applicant was reported absent without leave (AWOL) from his unit at Fort Hood, Texas. On 11 December 1998, the applicant was reported as a deserter [dropped from the rolls] on DD Form 553 (Deserter/Absentee Wanted by the Armed Forces) which is filed in his personnel record. 7. On 22 January 1999, the applicant returned to military control as documented on DD Form 616 (Report of Return of Absentee). 8. On 28 January 1999 court-martial charges were preferred against the applicant for violating the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 12 November 1998 to on or about 25 January 1999 (sic), a period of 74 days. At the time, the data sheet showed he was married and had four dependents. He had served more than 8 years in the Regular Army. The reason stated for his AWOL was "personal reasons." The commander noted the applicant had become disillusioned with the military and that retention of the applicant was not in the best interest of the Army. 9. On 28 January 1999, the applicant consulted with legal counsel. Counsel advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, the applicant requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation (AR) 635- 200 (Personnel Separations – Enlisted Personnel). In his request for discharge, he acknowledged he understood: * he could request discharge for the good of the service because of charges preferred against him under the UCMJ, each of which authorized the imposition of a bad conduct or dishonorable discharge * by submitting his request, he was admitting he was guilty of the charges against him or of a lesser included offense that also authorized imposition of a bad conduct or dishonorable discharge * he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person * he did not desire any further rehabilitation under any circumstances because he had no desire to perform further service * he acknowledged he could receive an under other than honorable characterization of service * he acknowledged he understood that if his discharge request were approved he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits administered by the VA * he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he acknowledged he could apply to the Army Discharge Review Board (ADRB) or the ABCMR, if he wished to have his discharge reviewed and that an act of consideration on the part of the boards did not imply that his discharge would be upgraded * he elected not to submit a statement on his own behalf * he elected not to have a physical examination prior to his separation 10. On 14 June 1999, following review for legal sufficiency, the separation authority approved the applicant's voluntary discharge from the Army under the provisions of chapter 10 of Army Regulation 635-200. He directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate and the applicant's reduction to the lowest enlisted grade. 11. The applicant was discharged on 28 June 1999. His DD Form 214 shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial. This form also shows he completed 8 years, 8 months, and 21 days of active service during this period. He was assigned separation program designator code KFS and he was issued an Under Other Than Honorable Conditions Discharge Certificate. 12. He petitioned the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations. On 22 December 2008 the ADRB determined he was properly and equitably discharged denying his request. 13. As evidence to support his application the applicant provided a letter from the VA attesting to the fact that at the time of his application he was hospitalized at a VA inpatient psychiatric ward. He also sent in his hospital discharge plan with lists of resources available to help him. While hospitalized in 2016 the VA diagnosed him with the following medical conditions: * opiate use disorder * stimulant use disorder * alcohol use disorder * cannabis use disorder * substance-induced mood disorder * unspecified depressive disorder verses bipolar disorder * nightmares verses PTSD 14. On 9 January 2017, the Army Review Boards Agency (ARBA) sent a request to the applicant requesting copies of medical evidence in support his contention that undiagnosed PTSD led to his decision to go AWOL. On 17 February 2017, he responded by providing more medical documents. a. On 5 January 2015, he was seen by a medical doctor who conducted an initial psychiatric assessment diagnosing him with PTSD, mood disorder not otherwise specified, severe cocaine dependence, and cannabis use disorder. She indicated he was homeless and had a previous history of suicide attempts. She did prescribe medication for his nightmares. b. Within the hospital discharge summary (May 2016) the medical provider indicated the applicant had a history of major depressive disorder and PTSD. It appears the PTSD diagnosis was self-reported while there was medical evidence to support the diagnosis of major depressive disorder. Further, he had a history of hospitalizations and suicide attempts. Within the discharge summary is evidence he had a diagnosis of PTSD based on having witnessed combat related trauma with recurrent nightmares, avoidance behavior and hypervigilance. The provider had used the PTSD Checklist known as PCL-5 and summary scores for each category to make the PTSD diagnosis. c. He provided a Montgomery County Department of Correction and Rehabilitation Mental Health Services psychiatric consultation sheet date 27 May 2016. The medical provider indicated the applicant had PTSD along with the aforementioned substance use disorders. It appears while incarcerated he was seen regularly in the same department by the same provider. 15. On 13 April 2017, the Army Review Boards Agency (ARBA) psychologist provided an advisory opinion. The advisory found the available documentation showed the applicant met medical retention standards for all medical conditions and there was no indication for physical disability evaluation system processing. There is available evidence provided by the applicant supporting a change to his characterization of service, narrative reason for separation and related entries on his discharge documents due to a nexus between his AWOL (avoidance behavior) and his post-service diagnosis of PTSD which was documented by multiple providers. A copy of the complete medical advisory was provided to the Board for their review and consideration. 16. The applicant was provided a copy of the advisory opinion on 14 April 2017 and given an opportunity to submit comments. He did not respond. 17. 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. 18. 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; sexual harassment. Boards were directed 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 that misconduct which led to the discharge. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is sufficient evidence to grant partial relief. The applicant’s contentions, medical concerns and the medical advisory opinion were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record. Two Board members agreed with the medical advisory that there were mitigating factors to the misconduct, and agreed an upgrade to under honorable conditions is warranted. The dissenting member concluded there was no evidence war caused him to have a PTSD diagnosis as his misconduct was committed 7-years after returning from the Gulf War, he was not in a combat MOS, and the war officially ended one month after he arrived. Based upon the majority vote, an under honorable conditions characterization is recommended. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X : :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :X : 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 him a DD Form 214 for the period ending 28 June 1999 showing his characterization of service as under honorable conditions. 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 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. Army Regulation 15-185 (Army Board for Correction of Military Records) 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. The ABCMR is not an investigative body of Army. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-14 states when a Soldier is to be discharged under other than honorable conditions; the separation authority will direct an immediate reduction to the lowest enlisted grade. b. Paragraph 3-7a states an honorable discharge is given when the quality of the Soldier’s service had generally met standards of acceptable conduct and duty performance. c. Paragraph 3-7b states a general discharge is 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. d. Chapter 5, Section II (Secretarial Authority), states the separation of enlisted personnel for the convenience of the government is the prerogative of the Secretary of the Army. e. Chapter 10 provided a member who had committed an offense or offenses for which the authorized punishment includes a punitive discharge could submit a request for discharge, in lieu of trial by court-martial, at any time after the charges had been preferred. The Soldier's request was to include an acknowledgement that he/she understood the elements of the offense(s) and was guilty of the charge(s), or of a lesser-included offense. A discharge under other than honorable conditions was normally considered appropriate 4. Army Regulation 635-5-1 (Separation Program Designators (SPD)) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service and the separation designator codes to be used for the stated reasons. * SPD KFF is the current code for use directed by the service secretary under the provisions of Army Regulation, Chapter 5, Section Il * SPD KFS is the code used by enlisted personnel separating under the provision of Army Regulation, Chapter 10 5. Army Regulation 635-5 (Separation Documents), in effect at the time, established standardized policy for preparing and distributing the DD Form 214. This regulation stated the purpose of the separation document was to provide the individual with documentary evidence of his or her military service at the time of release from active duty, retirement, or discharge. It is important that information entered on the form is complete and accurate and reflects the conditions as they existed at the time of separation. The instructions stated to use the DA Form 2-1 and orders to verify the entries on the DD Form 214. 6. Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3 (Medical Fitness Standards for Retention and Separation, including Retirement) provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below acceptable physical standards. For anxiety, somatoform, dissociative disorders and mood disorders (depression) a Soldier can be referred to a medical evaluation board if the medical condition(s) require extended or recurrent hospitalization, limitation of duty or duty in a protected environment or interfere with effective military performance. Situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability, but may be the basis for administrative separation if recurrent and causing interference with military duties. Paragraph 3-3 states Soldiers whose medical conditions fail retention standards are to be referred to a physical evaluation board (PEB) as defined in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). The PEB will make the determination of fitness or unfitness and then based on law a Soldier will be medically separated or medically retired. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160015871 2 1