ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 July 2019 DOCKET NUMBER: AR20160017716 APPLICANT REQUESTS: * His narrative reason for separation to read as a medical retirement/separation * An upgrade of his characterization of service from under honorable conditions to honorable APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Personal Essay * Veterans Affairs (VA) Rating Decision * Psychiatric Evaluation * Information Sheet (Sleep & Allergies) * Medical Record 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, he is asking for a medical retirement/discharge, and narrative reason for separation, not for any separation pay or monetary gains that comes from a result of a medical retirement or separation. He states this has nothing to do with money, but is simply about what is right, and he would decline any money. He believes that medical separations are based off of injuries sustained at the time of discharge. After his first deployment, he was never the same but he tried to handle it, and had marital problems as a result of it. He also had problems with anger, psychological abuse, irritability, loneliness and insomnia. He was command directed to anger management classes, which he states are from post-traumatic stress disorder (PTSD). He states that he received a combat action badge, and had continuous knee pain, reconstructive ACL surgery and MCL surgery. During surgery, he lost some of the 1. feeling in his leg. He also feels as he is not asking for something he doesn’t deserve, in asking for an upgrade. 3. The applicant provides: a. VA Rating Decision, effective date 3 August 2016, which states the applicant is granted and/or receives payment from the VA for: * individual unemployability * Dependents' Educational Assistance * 50% for migraines * 10% for right foot, stress fracture * 10% for residual lumbar strain * 50% for PTSD * 10% for postsurgical changes of the lateral meniscus * 10% for chronic sinusitis * 10% for tinnitus b. Psychiatric Evaluation (no date), which states the applicant’s chief complaint was the worsening of his PTSD. c. Information Sheet (Sleep & Allergies), dated 4 November 2016. d. Medical Record, start date 25 August 2010. 4. A review of his service records shows: a. He enlisted on 14 April 2004 in to the Regular Army (RA). b. He was discharged on 22 January 2007 for immediate reenlistment. He reenlisted in to the RA on 23 January 2007. c. He was discharged on 27 April 2010 for immediate reenlistment. He reenlisted in to the RA on 28 April 2010. d. The applicant's record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army. a. e. On 6 February 2013, the applicant was discharged under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14 (Separation for Convenience of the Government), paragraph 14-12c (Commission of a Serious Crime). He had 8 years, 9 months and 23 days of active service. It shows in: * Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized): * Iraq Campaign Medal with Four Campaign Stars * Army Commendation Medal (2nd Award) * Army Achievement Medal (4th Award) * Meritorious Unit Commendation * Army Good Conduct Medal (2nd Award) * National Defense Service Medal * Global War on Terrorism Service Medal * Noncommissioned Officer Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon (3rd Award) * Combat Action Badge * Driver and Mechanic Badge with Driver –Wheeled Vehicle Clasp * German Armed Forces Proficiency Badge – Bronze * item 23 (Type of Separation), Discharge * item 24 (Character of Service), Under Honorable Conditions (General) * item 25 (Separation Authority), AR 635-200, Paragraph 14-12c * item 26 (Separation Code), JKQ (Misconduct) * item 27 (Reenlistment Code), 3 * Item 28 (Narrative Reason for Separation), Misconduct (Serious Offense) 5. On 8 April 2019, the Army Review Boards Agency medical advisor/ psychologist reviewed the applicant's case and rendered an advisory opinion and opined: a. There is no data in the applicant’s very extensive Armed Forces Health Longitudinal Technology Application (AHLTA) records to indicate that he experienced a behavioral health traumatic event. Further, the applicant never reported anything similar to the other symptoms of PTSD per Diagnostic and Statistical Manual of Mental Disorders (DSM-V) during his time in the U.S. Army. The behavioral health issues where the applicant was provided support revolved about him being a perpetrator of domestic violence. a. b. The data does not support PTSD or any other behavioral health condition which may qualify as medically boardable. The interactions the applicant did have with behavioral health were all related to his being a perpetrator of domestic violence. c. The applicant met all Army medical retention standards for both medical and behavioral health issues at the time of his administrative separation. d. There were no conditions to mitigate the applicant’s misconduct. A mental status evaluation was conducted on 23 October 2012. 6. On 12 April 2019, the applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal. He did not respond. 7. The applicant applied to the Army Discharge Review Board (ADRB) on 27 August 2015, and the Board determined that he was properly and equitably discharged and his request for a change in the character and/or reason of his discharge is denied. 8. The applicant applied for Combat-Related Special Compensation on 7 February 2017, and was denied because he was not in a retired status. 9. By regulation (AR 635-5), item 28 (Narrative Reason for Separation), is based on regulatory or other authority and can be checked against the cross reference. 10. By regulation, separations under the provisions of AR 635-200, chapter 14 provides policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. 11. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 1. BOARD DISCUSSION: After review of the application and all evidence, the Board found partial relief is warranted. The applicant’s contentions, medical concerns, and the medical advisory were carefully considered. The medical advisory official determined there was no boardable medical condition during his period of active service, nor 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. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. He was discharged for a criminal offense and was provided an Under Honorable Conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel. However, the Board did note that the applicant had prior periods of honorable service which are not currently reflected on his DD Form 214 and recommended that change be made to more accurately depict his military service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 14 April 2004 until 27 April 2010.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge and change the narrative reason for separation. 8/9/2019 X CHAIRPERSON Signed by: 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. 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 (Personnel Separations - Active Duty Enlisted Administrative Separations) sets policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of soldiers for a variety of reasons. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. 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. AR 635-5, prescribes the transition processing function of the military personnel system. 4. 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; TBI; 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 to those conditions or experiences. The guidance further describes 1. 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. 5. 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//