IN THE CASE OF: BOARD DATE: 29 April 2019 DOCKET NUMBER: AR20160017826 APPLICANT REQUESTS: The applicant requests reconsideration to upgrade her son’s discharge to honorable. 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) * Chancery Court of Montgomery County, Letters of Conservatorship * Army Discharge Review Board (ADRB) Docket Number AR20080000241 * Army Board for Correction of Military Records (ABCMR) Docket Number AR20110022801 with allied documents * Department of Veterans Affairs (VA) rating decision dated 24 March 2015 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 in Docket Number AR20110022801 on 5 June 2012. 2. The applicant states her son was erroneously discharged due to misconduct. He had an undiagnosed behavioral health problem. 3. The applicant’s son enlisted in the Regular Army on 31 October 2002 and was awarded military occupational specialty 92Y (Unit Supply Specialist). He was assigned to Fort Bragg, NC, and then to Fort Campbell, KY. The highest rank/grade he held while serving on active duty was specialist (SPC)/E-4. 4. His record contains Military Police Reports that show: a. On 13 March 2004 while at Walter Reed Army Medical Center (WRAMC), he and his girlfriend had a verbal altercation and he threw a shoebox at her hitting her in the chest. He admitted to the assault. b. On 31 December 2004, he was arrested in Fayetteville, NC, on a warrant for communicating threats of physical injury. He was confined by civil authorities upon his arrest pending a bond hearing. c. On 25 August 2005, he was arrested in Clarksville, TN, and incarcerated by civil authorities for domestic assault as a result of a warrant issued by the State of Tennessee on 23 June 2003 for simple domestic assault. 5. On 27 April 2005 he accepted non-judicial punishment under the provisions of Article 15 of the Uniformed Code of Military Justice for wrongfully wearing unauthorized grade insignia in the grade/rank of SPC/E-4. 6. A Developmental Counseling Form dated from 17 March 2005 to 1 September 2005, wherein he was counseled for wearing unauthorized grade insignia on his uniform by wearing SPC/E-4 rank, missing formation, evading an arrest warrant, and the issuance of two no contact orders. 7. His record contains a Report of Medical Assessment, dated 30 August 2005, wherein he indicated he received retinal detachment/cataract surgery while serving in the military. 8. His record contains a Report of Medical History, dated 7 September 2005. He indicated he was currently in good health but had daily pain from headaches, dizziness, back pain, and woke up three times a night. 9. His record contains a Report of Medical Examination, dated 7 September 2005, wherein the medical authority indicated the applicant was medically qualified for military service and cleared for administrative separation. 10. His record contains a Report of Mental Status Evaluation, dated 12 October 2005, wherein the medical authority indicated the applicant exhibited normal behavior, was fully oriented, his mood was unremarkable, his thinking process was clear, his thought content was normal, and his memory was good. The medical official also indicated he was mentally capable of understanding and participating in proceedings, was mentally responsible, met medical retention standards, and was psychiatrically cleared for any administrative action deemed necessary. 11. On 7 November 2005, his commander notified him of his intent to initiate separation action against him for a pattern of misconduct under the provisions of Army Regulation 635-200, paragraph 14-12. The reason(s) for the proposed action were based on an Article 15 the applicant received for wearing the grade of specialist (SPC/E4) on his uniform on 24 February 2005, being counseled for missing formation on 25 August 2005, and evading an arrest warrant for domestic violence on 1 September 2005. The commander recommended he be given a general under honorable conditions discharge. He acknowledged receipt of the notification. 12. A memorandum from the Office of the Staff Judge Advocate, dated 27 December 2005, wherein a military attorney indicated he reviewed the chapter 14 elimination packet and found it to be legally sufficient. The separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, and directed issuance of a General Discharge Certificate. 13. On 12 January 2006, he was discharged accordingly. His DD Form 214 shows he received a general under honorable conditions discharge by reason of a pattern of misconduct. He completed 3 years, 2 months, and 12 days of creditable active service. His DD Form 214 shows he was given an RE-3 and a separation program designator (SPD) code of JKA (misconduct). He was discharged in the rank/grade of private/E-1. 14. On 24 October 2008, the ADRB reviewed his request to upgrade his discharge and determined he had been properly and equitably discharged and, therefore, denied his request. 15. On 5 June 2012 counsel requested, on behalf of the applicant, his discharge be changed to a medical discharge or upgraded to honorable in ABCMR Docket number AR20110022801 and was denied. Counsel provided a psychological evaluation from a psychologist at the Family Wellness Center, a letter from a VA clinical neuropsychologist, a letter from the VA Department of Neurology that provided a detailed information in regards to his medical and mental health history. Additionally, counsel provided a letter from the applicant's mother, dated 17 October 2011, wherein she described the timeline of events that resulted in her son’s discharge. She also stated in part: * as a child he was warm, loving, caring, kind, and presented with quiet and compliant behavior * he played saxophone in the jazz band in middle school and played football * he was average performer in high school excelling in track and field * in 2000, he graduated from high school * in 2001, he received a track scholarship to Fisk University * in 2002, he joined the Army and went to airborne school * he was deployed to Iraq with his unit * in October 2003, he was medically evacuated from Iraq to Walter Reed Army Medical Center (WRAMC) to have eye surgery for a detached retina * in February 2005, he returned to Fort Campbell, KY (at this time his mental status was questionable to make reasonable decisions) * the family noticed personality changes when he began exhibiting anger, defiance, aggression, using profanity, becoming angry during conversations, and injuring his sister * he received a mental health evaluation; however, the misconduct block was not checked so he missed the opportunity for help * he came home to live for a while and would sleep late; isolate himself in his room; became very disorganized and consistently lost things; and exhibited low motivation/energy, increased defiance, and rigid stubborn behavior * in August 2006, he was charged with simple assault of a family member 16. VA ratings decision dated 24 March 2015, shows he was granted a 100 percent service connected disability rating for neurodegenerative disorder with dementia (claimed as post traumatic stress disorder (PTSD) with depressive disorder). The Board notes, the fact that VA, in its discretion, has awarded the applicant’s son a disability rating is a prerogative exercised within the policies of that agency. It does not, in itself, establish physical unfitness for Department of the Army purposes. 17. On 26 April 2017, a medical advisory opinion was rendered concerning this case by the Army Review Boards Agency clinical psychologist, it states, in pertinent part: a. This opinion is based on the information provided by the Board as the Department of Defense electronic medical record (AHLTA) was not in use at the time of his service. Although the cause of his early onset of dementia is unknown, there is evidence that his misconduct can likely be linked to a cognitive disorder resulting in subsequent difficulty with reasoning, decision-making, impulse control, and aggression. Although his military medical records are void of neurodegenerative symptoms, it is possible he was experiencing unnoticed symptoms at the time of discharge; therefore it is more likely than not possible he may not have been in full control of his behaviors that contributed to an early separation from the Army. b. There is supportive medical documentation, to include neuropsychological testing, indicating his physical and mental decline may have started while in service. Furthermore, it is noted that family members in 2005 and 2006 recognized personality changes, anger, defiance, verbal and physical aggression, sleep disturbance, social isolation, disorganization, low energy, and defiance. c. Given the severity of his impairment and his need for continued supportive services, it is more likely than not that a Behavioral Health condition contributed to the misconduct that led to his separation from Active Duty. 18. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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. a. 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. b. Paragraph 1-35 states that, when the examining medical officer decides a member being considered for elimination for misconduct (chapter 14) does not meet the retention medical standards, he or she will refer that member to a medical board. The medical treatment facility commander will furnish a copy of the approved board proceedings to the commander exercising general court-martial authority (GCMCA) over the member concerned. The commander exercising GCMCA will direct the member to be processed through disability channels per Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) when it is determined that the disability is the cause or substantial contributing cause of the misconduct or circumstances warrant disability processing instead of administrative processing. 19. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states that an enlisted member may not be referred for physical disability processing when action has been started that may result in an administrative separation with a characterization of service of under other than honorable conditions. If the case comes within these limitations, the commander exercising general court-martial jurisdiction over the Soldier may abate the administrative separation. A case file could be referred to a physical evaluation board (PEB) if the GCMCA finds the disability is the cause or a substantial contributing cause of the misconduct that might result in a discharge under other than honorable conditions or other circumstances warrant disability processing instead of administrative separation. 20. Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. 21. The applicant's mother states he was erroneously discharged due to misconduct because he had an undiagnosed behavioral health problem. The ARBA clinical psychologist states there is supportive medical documentation, to include neuropsychological testing, indicating his physical and mental decline may have started while in service. Furthermore, it is noted that family members in 2005 and 2006 recognized personality changes, anger and defiance, verbal and physical aggression, sleep disturbance, social isolation, disorganization, low energy, and defiance. It is more likely than not that a Behavioral Health condition contributed to the misconduct that led to his separation from Active Duty. 22. In reaching its determination, the Board should consider the applicant’s petition, her son’s service record, and his post-service medical history in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined that there is sufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration to the complete evidentiary record, including the applicant’s statement and found that the applicant’s case merits clemency in that the applicant served his county honorably during wartime in Iraq, and his wartime injury is likely a mitigating factor in the change in his behavior (his misconduct) pursuant to the injury and wartime service. 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 showing his characterization of service as honorable and the narrative reason as secretarial authority. 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. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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 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. a. 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. b. Paragraph 1-35 states that, when the examining medical officer decides a member being considered for elimination for misconduct (chapter 14) does not meet the retention medical standards, he or she will refer that member to a medical board. The medical treatment facility commander will furnish a copy of the approved board proceedings to the commander exercising general court-martial authority (GCMCA) over the member concerned. The commander exercising GCMCA will direct the member to be processed through disability channels per Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) when it is determined that the disability is the cause or substantial contributing cause of the misconduct or circumstances warrant disability processing instead of administrative processing. 2. Army Regulation 635-40 establishes the Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. a. It provides for medical evaluation boards (MEB's), which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. b. An enlisted member may not be referred for physical disability processing when action has been started that may result in an administrative separation with a characterization of service of under other than honorable conditions. If the case comes within these limitations, the commander exercising general court-martial jurisdiction over the Soldier may abate the administrative separation. A case file could be referred to a physical evaluation board (PEB) if the GCMCA finds the disability is the cause or a substantial contributing cause of the misconduct that might result in a discharge under other than honorable conditions or other circumstances warrant disability processing instead of administrative separation. 3. Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. 4. 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. a. 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. b. 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. ABCMR Record of Proceedings (cont) AR20160017826 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20160017826 9 ABCMR Record of Proceedings (cont) AR20160017826 8