ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 May 2019 DOCKET NUMBER: AR20160017646 APPLICANT REQUESTS: his 2009 discharge characterization of service be upgraded to honorable from general, under honorable conditions due to his diagnosis of post-traumatic stress disorder (PTSD) from combat operations in Iraq. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Statement * Department of Veterans Affairs (VA) Service Connected Compensation, dated 6 March 2015 * VA Progress Notes – PTSD Disability Benefits Questionnaire (12 pages), DATED 4 February 2016 * VA appointment profile dated 26 August 2016 FACTS: 1. The applicant did not file within the three 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 it has been about 5 years since he was discharged from the U.S. Army. He has been working very hard to take care of himself, his wife and two children. He was diagnosed by the Department of Veterans Affairs with PTSD and is currently rated at 70 percent. He currently has advocates working on his behalf to increase his disability percentage to 100 percent because of the severity of his PTSD. At the time of his discharge he was unaware that he was suffering from this medical disorder. He states his misconduct occurring during his military service stemmed from his undiagnosed PTSD. It was his drinking and inappropriate behavior that became an issue which eventually led to his early release from his duties as a Soldier. He opines that before he joined the military and before his deployment he had no mental health challenges (disorders). He states he was a productive citizen that wanted to serve his country. It was his wartime experiences and the horrific sightings that he witnessed that became the catalyst of his reason for discharge earlier than he had intended. He claims it was his undiagnosed PTSD that led to his unacceptable behavior and his defiance to the Army standards. 3. He requests his discharge be upgrade to honorable. He knows his conduct post deployment was unfavorable, he did serve the country as a Soldier and is proud of this accomplishment. He feels because he risked his life for his country, that he deserves no less than an honorable discharge. He would like all the benefits that accompany an honorable discharge so that he can better provide for his family. Specifically, he would like to receive his education benefits. He needs to be able to afford higher education because it is one of the ways to continue overcoming his PTSD and obtaining his own independence. 4.  The applicant enlisted in the Regular Army on 8 June 2006. He was trained in and qualified as a power equipment generator repairman. He served in Iraq from 7 May 2007 to 28 June 2008 where he earned the Combat Action Badge. 5.  On 21 October 2008, the applicant received a general officer memorandum of reprimand for driving under the influence of alcohol on 2 October 2008 in Hinesville, Georgia. He was observed traveling 115 miles per hour in a 45 mile per hour speed zone. Upon initiation of the traffic stop, a civilian police officer detected a strong odor of alcohol emanating from the applicant. A search of the vehicle revealed an open container of alcohol in his vehicle. A breathalyzer test showed the applicant’s blood alcohol content at the time was 0.142 and he was cited for driving under the influence, reckless driving, having an open container of alcohol and speeding. (The associated military and civilian police reports for this incident are filed in his official military personnel file.) 6.  On 28 October 2008, the applicant was again stopped by civilian authorities for driving under the influence of alcohol. 7.  On 5 November 2008 the applicant elected to not make a statement on his behalf concerning the 21 October 2008 general officer memorandum of reprimand. In addition, he acknowledged receipt and read the unfavorable information identified in the memorandum of reprimand. He acknowledged he understood his rights. He was directed to enroll in the Army Substance Abuse Program for alcohol abuse by his battalion commander. 8.  On 5 November 2008 the applicant received notification that he could be punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully disobeying the lawful order of a superior commissioned officer by disobeying his order when he was seen and caught on post driving on suspended post driving privileges. 9.  On 26 November 2008 the applicant indicated he did not demand trial by court-martial and accepted the Article 15. His punishment consisted of reduction in rank to the rank of private (PVT)/pay grade E-1, forfeiture of $673 pay per month for 2 months which was suspended to be automatically remitted before 26 May 2009; extra duty for 45 days and restriction to the limits of Fort Stewart, Georgia for 45 days. The applicant did not appeal his punishment. 10.  On 19 December 2008, he received his second memorandum of reprimand from a general officer. On 26 October 2008 [28 October 2008] in Hinesville, Georgia, a Hinesville Police Officer observed the applicant make an improper lane change. The police officer initiated a traffic stop and he detected a strong odor of alcohol emanating from the applicant. A breathalyzer test showed the applicant’s blood alcohol content was 0.102 and he was cited for driving under the influence of alcohol and an improper lane change. The general officer also acknowledged the applicant had been previously cited for driving under the influence of alcohol on 2 October 2008. He was advised of his rights and the memorandum was not imposed under nonjudicial punishment. 11.  On 5 January 2009, the applicant acknowledged the unfavorable information cited in the memorandum of reprimand. He acknowledged he could consult with legal counsel. After reviewing the memorandum, he elected not to submit a statement on his behalf. 12.  On 13 January 2008 the applicant received a DA Form 4856 (Developmental Counseling Form) wherein he acknowledged he had been counseled under the provisions of paragraph 12-14b of Army Regulation 635-200 (Active Duty Enlisted Administrative Separation) due to patterns of misconduct – driving under the influence of alcohol and disobeying lawful orders. 13.  In an undated letter the applicant's immediate commander notified him in writing of his intent to initiate separation action against him for misconduct in accordance with Army Regulation) 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), paragraph 14-12b, for patterns of misconduct. The commander noted he had two violations of driving under the influence of alcohol and one violation of disobeying the lawful orders of a commissioned officer. 14.  The applicant acknowledged receipt of the commander's intent to separate him. He subsequently consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him. He elected not to submit a statement in his own behalf. He acknowledged he: * understood he could expect to encounter substantial prejudice in civilian life if a discharge under other than honorable conditions were issued to him * understood he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions * understood if he received a discharge characterization of less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade, but he understood that an act of consideration by either board did not imply his discharge would be upgraded 15.  As required by regulation, the applicant underwent a mental status evaluation by a clinical psychologist. During the evaluation the applicant’s behavior was normal, he was fully alert and fully oriented. His mood or affect was unremarkable with a clear thought process and normal thought content. His memory was good. He had the mental capacity to understand and participate in separation proceedings to include being mentally responsible. She concluded his evaluation by stating the applicant met the medical retention standards of Chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness) because he had no psychiatric disease or defect that would warrant processing through the disability evaluation system. She acknowledged he was enrolled in the Army Substance Abuse Program for alcohol abuse. 16.  He underwent a physical examination in preparation for his separation. A DD Form 2808 (Report of Medical Examination) was prepared and is filed in his official military personnel record along with his separation laboratory and hearing records. It was noted he suffered from alcohol abuse. However, he was found qualified for separation as alcohol abuse is not a disqualifying medical condition warranting entry into the disability evaluation system. 17.  Subsequent to his acknowledgement and consultation with counsel, his immediate commander initiated separation action against him due to patterns of misconduct in accordance with Army Regulation 635-200, chapter 14. His intermediate commander recommended approval. 18.  Consistent with the chain of command's recommendations, on 19 February 2009, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 with his service characterized as general, under honorable conditions. 19.  On 5 March 2009 his DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged for patterns of misconduct, (Separation Code JKA), under the provisions of Army Regulation 635-200, paragraph 14-12b, with his service characterized as general, under honorable conditions. He completed 2 years, 8 months, and 28 days of net active service this period. 20.  He appealed to the Army Discharge Review Board (ADRB). On 10 September 2010, the ADRB determined his discharge was both proper and equitable and voted to deny his application. 21.  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 post-traumatic stress disorder (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. 22.  On 27 April 2017 the Army Review Boards Agency (ARBA) staff psychologist provided an advisory. The clinical psychologist was asked to determine if there is a nexus between the PTSD information/diagnoses contained in records and the misconduct that resulted in the applicant’s discharge.     a. She stated the applicant’s electronic medical records revealed a history of behavioral health treatment for alcohol abuse, cannabis abuse, and depression upon returning from Iraq. Although he was not diagnosed with PTSD by military medical providers, he reported experiencing nightmares, anxiety, fatigue, anger, and difficulty adjusting to life post-deployment. A medical record dated 26 June 2012 indicated he reported being a different person since returning from Iraq and was increasingly short-fused and irritable towards his children.      b. The applicant provided and the psychologist had access to his VA medical record through the Joint Legacy Viewer. A VA progress note dated 5 February 2016 indicated the applicant was diagnosed with PTSD, alcohol use disorder and cannabis use disorder. His behavioral health conditions caused him occupational and social impairment with deficiencies in the areas of work, school, family relations, judgment, thinking, and/or mood.      c. A VA letter dated 6 March 2015 indicates a service connection for PTSD. VA progress notes dated 5 February 2016 indicated the applicant was diagnosed with PTSD, alcohol use disorder, and cannabis use disorder. Behavioral health conditions caused occupational and social impairment with deficiencies in the areas of work, school, family relations, judgment, thinking, and/or mood. A VA letter dated 6 March 2015 indicated a service connection for PTSD was granted and he was assigned a disability rating of 70 percent.      d. She concludes stating based on a thorough review of available medical records, there is evidence the applicant met criteria for PTSD during his military service. Despite receiving both Army Substance Abuse Program assistance and outpatient treatment, PTSD symptoms have continued to negatively impact his mood and functioning, and can be associated with the alcohol and substance abuse, impulsivity, and risk taking behaviors that led to an early separation from service. His misconduct appears to be largely related to deployment experiences in Iraq. Supporting medical documentation regarding diagnoses of behavioral health conditions was provided by the VA where he receives mental health services. Given his impairment and need for continued supportive services, it is likely that PTSD mitigated the misconduct that led to his separation from active duty. A copy of the complete medical advisory was provided to the Board for their review and consideration. 23.  On 2 May 2017, the applicant was mailed a copy of the advisory to provide him an opportunity to respond. The applicant did not respond. 24.  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 to 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. 25.  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 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. 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. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, the advisory opinion and published DoD guidance for liberal consideration of discharge upgrade requests. The Board discussed the nature of the applicant’s misconduct, his deployment, his VA diagnosis of PTSD, the advising official’s conclusion of a mitigating condition and determined that liberal consideration applied to the applicant’s request. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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 the applicant a DD Form 214 for the period ending 5 March 2009 showing his characterization of service as Honorable. 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 three 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. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for misconduct. b. 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. 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. 3. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. The "JKA" SPD code is the correct code for Soldiers separating under paragraph 14-12b of Army Regulation 635-200 by reason of misconduct – drug abuse. ABCMR Record of Proceedings (cont) AR20160017646 0 8 1