ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  28 June 2019

	DOCKET NUMBER:  AR20160017913


APPLICANT REQUESTS: reinstatement of his rank/grade to sergeant/E-5 due to suffering from Post-Traumatic Stress Disorder (PTSD) acquired in the Gulf War and personal appearance before the Board.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Military Awards Request to U.S. Army Tank-Automotive and Armaments Command (TACOM)
* DA Form 2627 (Report of Proceedings under Article 15, Uniformed Code of Military Justice (UCMJ))
* History of PTSD Information Sheet
* Veterans Affairs (VA) Rating Decision
* Veterans Treatment Court Program (VTCP) Certificate of Special Recognition

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 received an article 15, under the UCMJ and that due to the decision made on August 31, 2013 by the VA in regards to a claim he submitted on April 26, 2012, it was determined that he is diagnosed with 70% PTSD (sleeping disorder, depression, and anxiety) related to his Military Service.  Furthermore, he is granted an additional 30% due to un-employability related to his service connected disability, which makes him 100% disable.  He committed this violation between (26 September1993 and 25 October 1993) after returning from combat in Southwest Asia (28 December 1990 - 16 May 1991).  It is believed that he was self-medicating without proper treatment or diagnosis from the United States Army after returning from the Gulf War.  At this time he request, with all proper respect, that he be reinstated to the rank of Sergeant (E5) due to PTSD acquired in the Gulf War.

3.  The applicant provides:

* Military Awards Request to TACOM, which states the applicant ordered a set of all authorized and awarded decorations
* DA Form 2627, dated 26 November 1993, which states the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 for one specification of wrongfully using marijuana, a controlled substance
* History of PTSD Information Sheet, dated 14 August 2016, which provides scholarly research on the history and effects of PTSD
* VA Rating Decision, dated 26 April 2012, which states the applicant received a 70% rating from the VA for PTSD, and further granted individual un-employability
* VTCP Certificate of Special Recognition, dated 15 October 2015.

4.  A review of the applicant’s service record shows:

	a.  He enlisted on 15 April 1988, in to the Regular Army (RA).  He served in:

* Germany from 6 August 1988 to 27 December 1990
* Saudi Arabia from 28 December 1990 to 16 May 1991
* Germany from 17 May 1991 to 29 November 1991

	b.  He was discharged on 27 August 1991 for immediate reenlistment.  He enlisted on 28 August 1991, in to the RA.

	c.  On 26 November 1993, the applicant accepted NJP under the provisions of Article 15 for one specifications of wrongfully using marijuana.  His punishment consisted, in part, of reduction to specialist/E-4.

	d.  On 11 December 1993, his immediate commander notified him that action was being initiated to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14 (Separation for Misconduct), paragraph 14-12c (Commission of a Serious Offense), based on use of marijuana.

	e.  On 11 December 1993, the applicant acknowledged receipt of the letter of notification of the commander’s intent to separate him under the provisions of 
AR 635-200, chapter 14-12c.

	f.  Subsequent to the applicant's acknowledgement, on 13 December 1993, the immediate commander formally initiated separation action against the applicant under the provisions of chapter 14 of AR 635-200, separation for misconduct, commission of a serious offense.

	g.  He consulted with legal counsel and acknowledged:

* he has been advised of the basis for the separation and its effects
* he may expect to encounter substantial prejudice in civilian life because of a general under other than honorable conditions discharge
* he may be ineligible for many or all benefits as a veteran under both Federal and State laws
* he will be ineligible to apply for enlistment in the United States Army for a period of two years after discharge

	h.  The chain of command reviewed the separation recommendation and subsequently recommended approval of the separation with a characterization of service as general under honorable conditions.

	i.  On 22 December 1993, following a legal review for legal sufficiency, the separation authority approved the recommendation for separation for commission of a serious offense and ordered his service be characterized as general, under honorable conditions.

	j.  On 7 January 1994, the applicant was discharged from active duty under the provisions of AR 635-200, Chapter 14-12c with a general under honorable conditions characterization of service.  He completed 5 years, 8 months, and 23 days of active duty service.  His DD Form 214 shows in:

* item 4b (Pay Grade), E-4
* item 12h (Effective Date of Pay Grade), 26 November 1993
* item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized): 

* Driver and Mechanic Badge with Track Bar
* Army Good Conduct Medal
* Army Service Ribbon
* Noncommissioned Officer Professional Development Ribbon
* Overseas Service Ribbon
* Southwest Asia Service Medal with Bronze Service Star
* Kuwait Liberation Medal
* Marksman Marksmanship Badge with Rifle Bar (M16)
* Marksman Marksmanship Badge with Hand Grenade Bar

* Item 23 (Type of Separation), Discharge
* item 24 (Character of Service), General
* item 26 (Separation Code), JKQ (Misconduct)
* item 27(Reentry Code), 3
* item 28 (Narrative Reason for Separation), Misconduct

5.  In the processing of this case, the Army Review Boards Agency medical advisor/ psychologist reviewed the applicant's case and rendered an advisory opinion on 
15 April 2019.  The psychologist opined:

	a.  Supplemental guidance is central to this case.  PTSD has been diagnosed by the VA based on the applicant’s experiences during the Gulf War.  Self-medicating with marijuana, although illegal, has been used to numb the PTSD symptoms.

	b.  PTSD has been diagnosed by the VA and is a mitigating factor at the time of misconduct.

	c.  There is insufficient data to opine whether the applicant met medical retention standards at the time of his misconduct as his medical records were not available for review.

	d.  PTSD is a mitigating factor for the applicant’s misconduct.

6.  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.  By regulation (AR 15-185), applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

8.  By regulation (AR 635-8), Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable,” will have “Continuous Honorable Active Service for dates which a
DD Form 214 was not issued, until the date before their current enlistment.  Additionally, the DD Form 214 reflects the rank and grade held by the Soldier at the time of separation.

9.  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.

10.  By regulation (AR 27-10):

	a.  The ABCMR does not normally reexamine issues of guilt or innocence under Article 15 of the UCMJ.  This is the imposing commander’s function and it will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence.  The applicant was provided a defense attorney, was given the right to demand trial by court-martial, and was afforded the opportunity to appeal the Article 15 through the proper channels.  The applicant elected not to appeal.   .

	b.  The basis for any set aside action of an Article 15 is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.  "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier.  

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.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that it could reach a fair and equitable decision in the case without a personal appearance by the applicant.

Additionally, the Board noted that the applicant’s misconduct was mitigated by his diagnosed PTSD in the medical advisory.  However, the Board found that the Article 15 was properly executed and that the mitigation of that misconduct is not to an extent that would warrant mitigating the punishment given as a result of that misconduct.  The Board found that the chain of command provided mitigation at the time of discharge by giving the applicant a General Discharge.   Therefore, the Board concluded no other mitigation was warranted.

Prior to closing the case, the Board did note that the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214.  Therefore, the Board recommended that change be completed to more accurately depict his military service.
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:

1.  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.
2.  A review of the applicant’s records shows his DD Form 214 omitted administrative entries in the Remarks block.  As a result, amend the DD Form 214 by adding in item 18 the entry “Continuous honorable service from 15 April 1988 to 27 August 1991."
	 
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 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  It provides that a commander should use non-punitive administrative measures to the fullest extent to further the efficiency of the command before resorting to non-judicial punishment (NJP) under the Uniform Code of Military Justice.  Use of NJP is proper in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate.  If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken.  Prompt action is essential for NJP to have the proper corrective effect.  NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier’s record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.

	a.  Paragraph 3-19(b)(6a) (Reduction in grade), the grade from which reduced must be within the promotion authority of the imposing commander or of any officer subordinate to the imposing commander. For the purposes of this regulation, the imposing commander or any subordinate commander has "promotion authority" within the meaning of Article 15(b) if the imposing commander has the general authority to appoint to the grade from which reduced or to any higher grade.

	b.  Paragraph 3-19(b)(6c) (Date of Rank), when a person is reduced in grade as a result of an unsuspended reduction, the date of rank in the grade to which reduced is the date the punishment of reduction was imposed. If the reduction is suspended either on or after the time the punishment was imposed, or is set aside or mitigated to forfeiture, the date of rank in the grade held before the punishment was imposed remains unchanged. If a suspension of the reduction is vacated, the date of rank in the grade to which reduced as a result of the action is the date the punishment was originally imposed, regardless of the date the punishment was suspended or vacated.

	c.  Paragraph 3-28 (Setting Aside and Restoration), is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.  Nonjudicial punishment is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15.  The basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.  "Clear injustice" means that there exists an un-waived legal or factual error which clearly and affirmatively injured the substantial rights of the soldier.  An example of "clear injustice" would be the discovery of new evidence unquestionably exculpating the soldier.  "Clear injustice" does not include the fact that the soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the soldier.

	d.  Paragraph 3-29 (Appeals), only one appeal is permissible under Article 15 proceedings.  Provisions for other administrative relief measures are contained in paragraph 3-43.  An appeal not made within a reasonable time may be rejected as untimely by the superior authority.  A reasonable time will vary according to the situation; however, an appeal (including all documentary matters) submitted more than 5 calendar days after the punishment is imposed will be presumed to be untimely, unless the superior commander, in the superior commander's sound discretion for good cause shown, determines it to be timely.

3.  Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 1-14 (reduction in grade), when a- soldier is discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade.

	b.  Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor.  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.  Paragraph 3-7b (General Discharge) states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	d.  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.

4.  AR 635-8 (Personnel Separations – Separation Processing and Documents), prescribes the transition processing function of the military personnel system.  This new regulation provides principles of support, standards of service, policies, tasks, rules, and steps governing required actions in the field to support processing personnel for separation and preparation of separation documents.

5.  AR 635-40 (Disability Evaluation for Retention, Retirement or Separation) establishes the Army Disability Evaluation System (DES) 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 office, grade, rank, or rating.  It states that only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

6.  AR 15-185, Army Board of Corrections of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  

	a.  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  

	b.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

	c.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

7.  AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation including retirement.

8.  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 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.

9.  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 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.

10  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.


ABCMR Record of Proceedings (cont)	 AR20160017913


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