ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 April 2019 DOCKET NUMBER: AR20160017007 APPLICANT REQUESTS: in effect, an upgrade of his under other than honorable conditions (UOTHC) discharge to a general, under honorable conditions discharge or an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim) dated 21 October 2015 * State of Texas, Hidalgo County, Texas, Judgment and Sentence dated 6 July 1998 * VA Form 21-4138 (Statement in Support of Claim), dated 21 October 2015 * VA Form 21-4138 - Claim Statement 10 November 2016 * VA Problem List, dated 12 May 2017 * VA letter to Army Review Boards Agency, dated 11 October 2018 * VA Stressful Incident Number 2 * VA Form 21-0781 (Statement in Support of Claim for Service Connected Post- traumatic Stress Disorder (PTSD) * VA Medical Progress Notes – 69 pages * Post Marked Envelopes to Family from Army Post Office * Picture of Applicant * Character Reference Letter 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 (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 in two separate statements that he was on leave from his Army unit when he returned home to visit his family in Edinburg, Texas. During a family gathering he had an altercation with a friend of his sibling. He states he is a Veteran of service in Saudi Arabia where he witnessed a Saudi Arabian National die of injuries sustained in a vehicular accident. He was told to render him first aide by a unit leader since he was a combat medic. The man died in his arms. He attributes this event as the cause of his PTSD and anxiety which played a substantial role in his angry outburst and irritability while home on leave. After the confrontation, he attempted to avoid escalating the issue and went home. The police were waiting for him at his home and he was charged with evading arrest. As he was arrested [and imprisoned], he was unable to return to his Army post within his allotted leave time and was discharged with an UOTHC characterization of service. 3. The applicant enlisted in the Regular Army on 27 January 1994. He completed training, was awarded a military occupational specialty and served as a Patriot launching station enhanced operator. A review of his DA Form 2-1 (Personnel Qualification Record) shows he served in United States Army Europe from 20 June 1994 to 19 June 1996. He was assigned to 5th Battalion, 7th Air Defense Artillery in Hanau, Germany. 4. On 24 December 1997, he was reported absent without leave (AWOL) from his unit stationed at Fort Bliss, Texas. On 22 January 1998, he was dropped from the rolls as a deserter. Concurrently, a DA Form 458 (Charge Sheet) was prepared. 5. On 9 July 1998, he was returned to the control of military authorities. Filed in his record is DD Form 616 (Report of Return of Absentee) showing his date of initial return was 1 June 1998 when he was apprehended for civilian offenses in Edinburg, Texas. 6. Concurrently, on 9 July 1998 court-martial charges were preferred against the applicant for being AWOL from 24 December 1997 to 9 July 1998. 7. On 16 July 1998, the applicant consulted with counsel (a Judge Advocate General’s Corps officer). He was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or dishonorable discharge. Subsequent to receiving counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 (Discharge for the Good of the Service), Army Regulation 635-200 (Enlisted Personnel – Enlisted Separations). He elected not to submit statements in his own behalf and acknowledged/understood: * he had not been subjected to any coercion whatsoever by any person * if his discharge request was accepted, he could be discharged UOTHC * as a result of the issuance of a UOTHC discharge he could be deprived of many or all Army benefits * he could be ineligible for many or all benefits administered by the VA * he could be deprived of his rights and benefits as a Veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life * there was no automatic upgrade of discharge and that he could apply to the Army Discharge Review Board (ADRB) and the ABCMR; he further understood any consideration by either board did not imply that his discharge would be upgraded. * he did not desire a physical evaluation prior to separation 8. On 6 October 1998, the separation authority approved the applicant's request for discharge, directed his reduction in grade to private (PV1)/E-1, as well as the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 9. On 23 October 1998, he was discharged accordingly. His DD Form 214 reflects the following information: * item 4a (Grade, Rate or Rank) – Private (PV1) * item 4b (Pay Grade) – E1 * item 12h (Effective Date of Pay Grade) – 7 October 1998 * item 24 (Character of Service) – UOTHC * item 25 (Separation Authority) – Chapter 10, Army Regulation 635-200 * item 26 (Separation Code) – KFS * item 28 (Narrative Reason for Separation) – in lieu of trial by court-martial 10. In support of his application the applicant provided a State of Texas Judgment and Sentence court document from Hidalgo County. On 6 July 1998 his case was called to trial in civilian court for evading arrest on 1 June 1998. He pled guilty to the charge. He had been held in the Hidalgo County Jail since the day of his arrest. His sentence consisted of confinement for 37 days for which he had already served. He was released from civilian confinement upon the completion of the trial [returning to military control]. 11. There is no evidence the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations. 12. 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, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable condition 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 applicants' service. 13. He provided a statement dated 21 October 2015 wherein he said he was on leave from the Army when he returned home to visit his family in Edinburg, Texas. During a family gathering he had an altercation with a friend of a sibling. He strongly believes his PTSD and anxiety disorder developed while experiencing “combat activity” in Saudi Arabia. It was his psychological conditions that played a substantial role in his anger outburst and irritability. After the confrontation at his mother’s house, he attempted to avoid escalating the issue and went home. When he arrived at his home, the police were waiting for him and he was charged with evading arrest. He was unable to return to his unit within his allotted leave time. He was discharged with an UOTHC characterization of service. 14. 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 post-traumatic stress syndrome; traumatic brain injury; 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. 15. On 13 September 2018 the Army Review Boards Agency sent the applicant a letter requesting he provide medical evidence to substantiate his claim of PTSD. 16. On 11 October 2018, the VA responded on behalf of the applicant by sending pertinent medical records and statements from the applicant. Within the packet of evidence are the following pertinent pieces in support of the applicant’s claim. a. He deployed with the 5th Battalion, 7th Air Defense Artillery to Dhahran, Saudi Arabia. He had completed his shift and was in a small bus taking them back to the Khorbar Towers where they stayed when off duty. A Saudi Arabian national was escorting their bus to the towers when it was hit by an oil tanker. He was a qualified combat medic so his lieutenant told him to render the civilian national first aide. The wreck crushed his chest and he was bleeding internally. He died in his arms of internal injuries. He states, "The face he made while dying has never left his mind." He says he was only 19 years old at the time of the incident. He is now in his 40's and he still can sees his face. He wakes up in cold sweats at night and has nightmares. He often washes his hands numerous times a day as if he is still washing off the blood. b. A document titled "Stressful Incident No. 2" states he was deployed to Saudi Arabia from approximately May 1996 to November 1996. On 25 June 1996, a terrorist drove a truck into Khobar Towers with high explosives and destroyed one whole building in the Khorbar Towers killing U.S. Armed Forces personnel and local nationals. He states he was located two tower buildings from the explosion. He states, "There was a lot of carnage, bodies, body parts and alot (sic) of wounded all over the area." He indicated he saw many killed and wounded in action personnel. At the time he was assigned to the 5th Battalion, 7th Air Defense Artillery (out of Hanau, Germany). c. The VA provided his medical problem list including depression, anxiety, insomnia, alcohol abuse and various other bodily ailments with an effective date of 28 September 2016. d. He provided a witness statement from a former Soldier who served with him in Saudi Arabia during a rotational deployment from Germany. She states she was not present at the incident but does recall hearing about it. She was going on "hot duty" when the applicant was going off duty. She knows he was a combat lifesaver. e. To verify his deployment [as it is not recorded in his personnel record], he provided four envelopes showing they were post marked from an Army Post Office and were free indicating his was in an area that was authorized free mail through the U.S. Post Office because of a remote location or hazardous duty location. f. There are approximately 69 page of medical notes provided for the Board’s review. The medical progress notes started on 14 September 2016. 17. In the processing of this application, two medical advisory opinions were obtained from the Army Review Boards Agency staff psychologist and psychiatrist. On 14 March 2019, the staff psychiatrist reviewed his record to determine if his record reasonably supported PTSD, or another boardable mental health condition. 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 no available evidence supporting a change to his narrative reason for separation or his separation code. She also reviewed his medical records through the VA Joint Legacy Viewer wherein he was diagnosed with PTSD (provisional), major depressive disorder, alcohol abuse, and anxiety disorder (unspecified). A psychiatry note dated 12 May 2017 ruled out PTSD. She concludes her evaluation by stating committing an assault and evading an arrest are not part of the natural order of anxiety or PTSD. In addition, while avoidance behavior (AWOL) can occur in PTSD, it is her opinion he absented himself in order to avoid arrest. [There was a significant period, nearly 5 months from his date of AWOL to his date of civilian arrest and apprehension. It appears he could not post bond and was retained in the county jail until his trial date.] A copy of the complete medical advisories were provided to the Board for their review and consideration. 18. The applicant was provided a copy of the advisory opinion on 19 March 2019 and given an opportunity to submit comments. He did not respond. 19. In summary, he served in Saudi Arabia during a rotational tour with his unit from Germany. While in Saudi Arabia he witnessed two incidents that he attributes are the root of his mental illness (diagnosed by the VA). He relocated to Texas and departed his unit in an AWOL status on 24 December 1997. On 1 June 1998, he was arrested by civilian authorities for evading arrest after assaulting or engaging in an altercation with a third party. He remained in jail until his civilian trial which appears to have been reduced to the charge of evading arrest. The county authority’s judgment accounted for his civilian imprisonment of 37 days and released him to military control. Once in military control, he was charged with the offense of AWOL and he subsequently requested a discharge in lieu of court-martial. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions, medical concerns, and the medical advisory were carefully considered. The medical advisory official determined there were no mitigating factors to his misconduct and subsequent separation. He was provided the opportunity to rebut the advisory; however, he did not respond. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. In addition, his record is absent evidence showing he deployed to Southwest Asia at any time. The Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. He did not provide evidence of post-service achievement for the Board’s consideration. 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. 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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 3. 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 * SPN KFS was the code used by enlisted personnel separating under the provision of Army Regulation, Chapter 10 4. 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. 5. 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) AR20160017007 7 1