ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  11 July 2019

	DOCKET NUMBER:  AR20160018672


APPLICANT REQUESTS:  his general discharge be changed to a medical discharge with full benefits

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Letter from a Department of Veterans Affairs (VA) clinic
* Hospital Discharge Instructions

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 had a psychiatric excusal for the two months that he was marked absent without leave (AWOL) and he was hospitalized during the time that he was discharged.  

3.  The applicant provides: 

     a.  A letter, dated 30 June 2016, from X__, an Advanced Practice Registered Nurse in adult psychiatry at the VA Medical Center in Newington, Connecticut, which states the applicant is under her care and that he entered treatment for Combat Related Post-Traumatic Stress Disorder (PTSD) on 28 May 2016.  She further states that since that time the applicant has had several exacerbations and a complex course of recovery.  He is in active treatment, keeps his appointments, and is fully adherent with his psychiatric plan of care.  A referral to the VA PTSD Therapy Team is pending.  He is unable to work outside of his home, or attend monthly weekend maneuvers with the Connecticut Army National Guard (CTARNG) at this time and is expected to return to work on 17 September 2016.

     b.  Discharge Instructions from John Dempsey Hospital in Farmington, CT, dated 18 August 2016.  The instructions note that applicant was diagnosed with Complex PTSD and Polysubstance Use Disorder (Cannabis, Cocaine).  He was transferred from the VA Hospital to John Dempsey Hospital on 10 August 2016 after hearing voices telling him to kill himself.  His condition improved after medication changes and the voices stopped.  Nightmares regarding past traumas continued, but his sleep improved.  Substance abuse rehabilitation was discussed with applicant and coordination was made with the VA for PTSD and substance abuse care options.  He was discharged on 18 August 2016 and transported back to the VA for a follow-up care appointment.

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

     a.  He enlisted in the CTARNG and Army National Guard of the United States (ARNGUS) on 30 April 2010.  On 11 May 2015, he extended his original enlistment for another six year period.  

     b.  A DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 29 April 2011, releasing applicant from active duty for completion of required active service in the rank of private E-2.   His service was characterized as honorable.

     c.  A DD Form 214, dated 28 September 2013, releasing applicant from active duty for completion of required active service in the rank of Specialist.  His service was characterized as honorable.  He had 1 year and 6 days of net active service for this period with 8 months and 24 days of foreign service.  Block 18 shows he served in Afghanistan from 12 November 2012 to 5 August 2013.  He was awarded or authorized the:

* Afghanistan Campaign Medal w/ Campaign Star
* Army Achievement Medal
* National Defense Service Medal
* Global War on Terrorism Service Medal
* Army Service Ribbon
* Overseas Service Ribbon
* Armed Forces Reserve Medal with “M” device
* NATO Medal
* Driver and Mechanic Badge

     d.  On 11 May 2015, he extended his original enlistment for another six year period.     

     e.  Orders 132-090, dated 12 May 2015, promoting applicant to the rank of Sergeant.

     f.  A DA Form 2166-9-1 (NCO Evaluation Report (SGT)) (NCOER), dated 16 August 2016.  The report covers the period 20150512 thru 20160510.  The report found that applicant was not qualified and that he met the standard in only one of six performance, professionalism, attributes, and competency categories.  It also noted that applicant was unavailable to sign the evaluation because he was AWOL.

     g.  A letter from the VA to the applicant, dated 27 July 2016, summarizing his VA benefits.  The letter notes applicant has service-connected disability rated at 80 percent. 

     h.  An NBG Form 22 (National Guard Report of Separation and Record of Service) with an effective date of 31 August 2016 discharging applicant from the ARNGUS and CTARNG with a character of service of general, under honorable conditions and directing his transfer to the United States Army Reserve Control Group (Individual Ready Reserve).  The form notes that copies will be sent to applicant at his last known address.  The basis of separation was unsatisfactory participation.  

     i.  Orders 244-043, dated 31 August 2016, which notes the basis for applicant’s loss is his “continuous and willful absence.”

     j.  A memorandum, dated 1 September 2016, disapproving the award of the Army Reserve Components Achievement Medal to the applicant for the period 30 April 2013 through 29 April 2016.

5.  On 13 April 2017, the Army Review Boards Agency clinical psychologist rendered an advisory opinion in the processing of this case.  She opined:

	a.  The military medical records indicated that while deployed to Afghanistan in April 2013, applicant was admitted for anticholinergic syndrome (confusion and delirium) following ingestion of an unknown quantity of medication.  Upon search of his room, many empty packets and bottles of Benadryl and Nyquil were found.  He was evaluated and admitted to having significant sleep issues and to having had suicidal thoughts six months earlier.  He denied symptoms of depression, anxiety, or PTSD and was recommended to take sleep enhancement and stress management classes.  A 1 May 2013 note indicated applicant was psychiatrically cleared and returned to full duty.  In July 2013, he was seen by behavioral health after he was caught drinking in theater.  He was diagnoses with Alcohol Abuse Disorder and sent to Combat Stress Control for further evaluation.  He admitted to a history of using alcohol to fall asleep and was recommended for formal drug and alcohol education and treatment upon return from deployment.  His demobilization physical indicated he screened negative for PTSD and had a PULHES of 11111. 

     b.   A NCOER dated 10 May 2016 indicated applicant did not meet the standard in regard to adherence to Army values.  It further noted that he had become a disruptive force within his platoon and company, was transferred due to displaying unpredictability in the field, and did not take military service seriously.  

     c.  A VA letter dated 27 July 2016 indicated that a service connection for PTSD was granted and applicant was assigned an 80 percent disability rating effective 1 March 2016.  A 30 June 2016 letter indicated that his diagnosis of PTSD was combat related, that he was actively participating in treatment, but had several exacerbations and a complex course of recovery.  A medical record from John Dempsey Hospital indicated he was transferred to their psychiatry unit on 10 August 2016 due to hearing voices saying to kill himself.  His condition improved with medication.  He continued to have nightmares related to past traumas and options for substance abuse outpatient treatment and rehabilitation were discussed.  He was transferred back to the VA on 18 August 2016. 

	d.  Based on thorough review of available medical records, there is no evidence that the applicant met criteria for a behavioral health condition during his military service or  that a medical discharge was warranted.  His record is void of the specific facts and circumstances regarding his contention that he was hospitalized at the time of separation and should receive a medical discharge with full benefits.  This observation does not negate applicant’s post-service diagnosis of PTSD from the VA; however, there is no evidence that he did not meet medical retention standards upon ending active duty service.  Furthermore, the VA conducts evaluations based on different standards and regulations and his military record is void of the specific facts and circumstances concerning events that could have contributed to a PTSD service-connected discharge from the Army.    

6.  On 1 May 2017, the advisory opinion was forwarded to the applicant for acknowledgement and/or response.  In response the Board was sent a State of Connecticut Certificate of Death showing applicant died by his own hand on 2 January 2017.  The certificate bears a handwritten note, dated 27 April 2017, from applicant’s grandmother, whose identity has been verified.  She states applicant was suffering and took his own life and asks the Board to take care of his case without him. 

7.  By regulation, commanders will initiate proceedings to transfer, reassign, or separate Soldiers who have been declared unsatisfactory participants.  

8.  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 relief was not warranted.  Based upon the medical advisory’s finding that there is no evidence that a medical discharge was warranted, the Board concluded there was insufficient evidence to show an error or injustice which would warrant making a change to the FSM’s narrative reason for separation.


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.


REFERENCES:

1.  Army Regulation (AR) 135-178 (Army National Guard and Army Reserve—Enlisted Administrative Separations), in effect at the time, establishes policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers of the Army National Guard of the United States (ARNGUS) and the United States Army Reserve (USAR).  Chapter 13, permits discharge for unsatisfactory participation when it is determined that a Soldier is unqualified for further military service because he is an unsatisfactory participant as prescribed under AR 135-91, Chapter 4 and attempts to have the Soldier respond or comply with orders or correspondence have resulted in the Soldier’s verbal or written refusal to comply or a second notice was refused, unclaimed, or otherwise undeliverable, or verification that the Soldier has failed to notify the command of a change of address and reasonable attempts to contact the Soldier have failed.  Characterization of service normally will be Under Other Than Honorable Conditions, but characterization as General (under honorable conditions) may be warranted.

2.  AR 135-91 (Army National Guard and Army Reserve—Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), in effect at the time, prescribes policies and procedures governing the various types of service obligations and participation requirements and enforcement procedures regarding unsatisfactory participation.  Chapter 4 addresses absences.

     a.  Paragraph 4-8 states absence from scheduled inactive duty training (IDT), training, or annual training (AT) may be excused.  Such absences may be excused when sickness, injury or some other circumstance beyond the Soldier’s control caused the absence.

     b.  Paragraph 4-9 states a Soldier excused for a reason shown in paragraph 4-8 may be required to document the reason for the absence.  The Soldier must furnish the required evidence within 15 days of the commander’s request.    

     c.  Paragraph 4-12b states Soldiers will be charged with unsatisfactory participation when without proper authority they accrue in any one-year period a total of nine or more unexcused absences from scheduled inactive duty training, fail to obtain a unit of assignment during a leave of absence granted for such purpose, or fail to attend or complete annual training.

     d.  Paragraph 6-2 states when it has been determined that an ARNGUS or USAR Soldier is an unsatisfactory participant, the immediate commander will initiate proceedings that result in the reassignment, transfer, or separation of the unsatisfactory participant.          

3.  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; 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 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 that misconduct which led to the discharge.

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 regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds.  The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.


ABCMR Record of Proceedings (cont)	 AR20160018672


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