ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 May 2019 DOCKET NUMBER: AR20160016528 APPLICANT REQUESTS: * an upgrade of his general, under honorable conditions discharge * correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to change his narrative reason for separation APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 * Department of Veterans Affairs (VA) Consult Request, Progress Notes and Rating Decision 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 AR2001057577 on 21 June 2001. 2. The applicant states his character of service and narrative reason for separation need to be corrected, post-traumatic stress disorder (PTSD) was a determining factor of his misconduct. Prior to his discharge, the leadership did not listen to him concerning his PTSD condition. Even after he told his leadership that something was wrong with him mentally, he was never psychiatrically evaluated when he returned from his Desert Storm deployment. 3. The applicant provides: * VA Consult Request showing on 28 April 2008 a mental health consult was requested for him * VA Progress Notes showing he was diagnosed with depression and anxiety disorder on 12 May 2008 and began receiving treatment in the VA Psychiatry Clinic * VA Rating Decision showing he was awarded a service-connected disability rating of 50% for PTSD, effective 6 October 2008 4. A review of the applicant’s service records show: a. He enlisted in the Regular Army on 6 June 1989. b. He served in Saudi Arabia from 12 October 1990 to 9 June 1991. c. He accepted nonjudicial punishment (NJP) on/for: * 25 March 1992 – altering an official document; his punishment included a reduction to pay grade E-3 * 4 May 1992 – being absent without leave (AWOL) from 13 to 14 April 1992; his punishment included a reduction to pay grade E-2 d. On 22 June 1992, the applicant's immediate commander notified the applicant of his intent to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), chapter 14-12b, for misconduct, with an under other than honorable conditions discharge. The applicant acknowledged receipt on the same date. e. On 25 June 1992, after consulting with legal counsel, he acknowledged: * maximum punishment * he could encounter substantial prejudice in civilian life if an under other than honorable conditions discharge was issued * he would be ineligible to apply for enlistment in the United States Army for a period of two years after discharge g. On 26 June 1992, his immediate commander recommended his separation under the provisions of AR 635-200, 14-12b. h. He accepted NJP on 26 June 1992 for being AWOL from 1 to 8 June 1991. His punishment included reduction to pay grade E-1. i. On 30 June 1992, the applicant’s brigade commander recommended approval of the applicant’s discharge under the provisions of AR 635-200, paragraph 14-12b, with the issuance of a general discharge. j. On 10 July 1992, he was discharged accordingly. His service was characterized as under honorable conditions (general). His DD Form 214 shows he completed 3 years, 1 month, and 5 days of active service. It also shows the narrative reason for separation as “Misconduct-pattern of Misconduct.” It further shows he was awarded or authorized: * Army Achievement Medal * National Defense Service Medal * Army Service Ribbon * Driver and Mechanic Badge with Driver-T Bar * Marksman Marksmanship Qualification Badge with Rifle Bar * Southwest Asia Service Medal with three bronze service stars * Kuwait Liberation Medal 5. On 25 May 2001, the Army Discharge Review Board determined that he was properly and equitably discharged and denied his petition for a change in the character and/or reason for his discharge. 6. On 21 June 2001, the ABCMR denied his petition for an upgrade of his discharge. 7. On 19 December 2011 and 19 June 2018, he was issued a DD Form 214 and DD Form 215 (Correction to DD Form 214) showing his service in Southwest Asia from 12 October 1990 to 9 June 1991 and award or authorization of the: * Kuwait Liberation Medal – Kuwait * Kuwait Liberation Medal – Saudi Arabia * Expert Marksmanship Qualification Badge with Grenade Bar * Army Commendation Medal (2nd Award) * Combat Infantryman Badge 8. An advisory opinion was received from the Senior Medical Advisor, Army Review Boards Agency, on 24 August 2018, in the processing of this case. The medical advisor reviewed the record for available records reasonably supporting PTSD or another boardable behavioral health condition existing at the time of the applicant’s military service and if those conditions failed medical retention standards. The medical advisor reiterated the applicant’s period of military service and stated in accordance with the Secretary of Defense’s liberal guidance memorandum, the applicant’s military records supported the existence of PTSD at the time of his discharge. His diagnosis of PTSD was mitigating for some of the misconduct that resulted in his general discharge from the military. The applicant’s military records indicated he met medical retention standards in accordance with AR 40-501 (Standards of Medical Fitness). 9. The applicant was provided with a copy of this advisory opinion for acknowledgement and/or rebuttal on 27 August 2018. He did not respond. 10. By regulation, action will be taken to separate a member for misconduct when it is clearly established that despite attempts to rehabilitate him or develop him or her as a satisfactory Soldier, further effort is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under AR 635-200, chapter 14-12b. 11. In reaching its determination, the Board can consider the applicants petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 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 was not warranted. Based upon the pattern of misconduct and the applicant already receiving a general discharge, the Board determined that the characterization of service received at the time of discharge was appropriate. For that reason, the Board recommended denying the applicant’s request for a change in characterization of service. The Board also determined that the applicant’s DD 214 accurately depicts the circumstances leading to the administrative separation; therefore, the Board recommended denying the applicant’s request for a change in the narrative reason for separation. 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. 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 (AR) 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, provides for the separation of enlisted personnel. The regulation stated in: a. Paragraph 3-7a (Honorable discharge) – an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member's service generally had met, the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b (General discharge) – a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a member whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 -12b – members are subject to separation for misconduct when it was clearly established that despite attempts to rehabilitate and/or develop him or her as a satisfactory Soldier, further effort was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under AR 635-200, Chapter 14-12b. 2. 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 based on 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160016528 5 1