ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 April 2019 DOCKET NUMBER: AR20160016691 APPLICANT REQUESTS: in effect, restoration of his rank and correction to his DD Form 214 (Certificate of Release or Discharge) to show his narrative reason for separation was due to medical reasons not misconduct. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Statement FACTS: 1. The applicant did not file within the 3 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: a. He was promoted to private first class (PFC)/pay grade E-3 and to specialist four (SPC)/pay grade E-4, then it was taken away from him and he was reduced to PFC/E-3. His reduction in rank started the downward spiral of not being able to pay his bills which led to another nonjudicial punishment, an Article 15 under the provisions of the Uniform Code of Military Justice (UCMJ). He never was able to recover from it. b. He would have accepted a medical discharge instead of a misconduct discharge because he was being treated for depression with medication (Celexa) prior to his separation. He states the Army, his chain of command, did not give him enough time to adjust to the medication before they initiated separation action. c. He states he was verbally and physically abused by his sergeant first class and his command sergeant major who would shove him into doors in their office repeatedly and begged him to strike them. They did not want to rehabilitate him nor help him with his depression. He asserts they wanted him in jail. At the time he felt he deserved it which is why he never brought it to anyone’s attention. He does not have proof of the abuse. He wanted to succeed in the military like many members of his family. d. He did well at his first duty station. At his second duty station he lived off post because he was married and no one would come and pick him up for unit formations. He was late and then his noncommissioned officers (NCOs) signaled him out and never let him recover. He wished he had fought the separation and requested a rehabilitative transfer. He states he does not deny the things that he did, “I absolutely did them.” However, there were extenuating circumstances with physical abuse from his NCOs and his depression that broke him. e. His medical records can be provided, if necessary. However, for the rest of his statement one will just have to believe him. He still lives the Army Values in his daily life with honestly and integrity. [The applicant indicated on his DD Form 149 that he provided medical records; however, none were received.] 3. The applicant enlisted in the Regular Army for a 4-year period of service in the rank and grade of private (PVT)/E-1 on 20 October 1998. He completed training and was assigned to his first duty station. On or about 18 October 2000, he was reassigned to Company A, 125th Signal Battalion, Schofield Barracks, Hawaii. 4. Item 18 (Appointments and Reductions) of his DA Form 2-1 (Personnel Qualification Record) shows the following history: * PVT1/pay grade E-1 – date of rank (DOR) 20 October 1998 * PVT2/pay grade E-2 – DOR 20 April 1999 * PFC/pay grade E-3 – DOR August 1999 * PV2/pay grade E-2 – DOR 8 June 2000 * PV1/pay grade E-1 – DOR 1 October 2001 5. The applicant’s history of accepting nonjudicial punishment under the provisions of Article 15, UCMJ follows: a. on 19 April 2001 (summarized) , for failure to go to his prescribed place of duty, to wit: 0615 hours physical fitness formation on two separate occasions. His punishment included 14 days restriction and extra duty. He was required to move into the billets with escort. He did not appeal. b. on 13 July 2001 (company grade), for failure to go to his prescribed place of duty: to wit 0615 hours accountability formation. His punishment included reduction to PV2/pay grade E-2, forfeiture of $272 [per 1 month], and extra duty for 14 days and restriction. He did not appeal. c. on 6 August 2001 (field grade), for willfully disobeying an order of a NCO and six counts of failure to go to his appointed place of duty on 3 and 4 July 2001. His punishment consisted of reduction to the rank and grade of PVT/E-1, forfeiture of $500 per month for 2 months (suspended to 5 September 2001), and extra duty and restriction for 30 days. Again, the applicant did not appeal. 6. The applicant’s chain of command in Hawaii had an extensive history of counselling him and recording said counselling sessions on DA Form 4856 (General Counselling Form) for the following infractions: * failure to report to physical fitness formations on multiple occasions * failure to report to work accountability formations on multiple occasions * indebtedness for which he was referred to a post financial advisor * failure to adhere to Army dress and uniform standards [punishment was to write a 2,000 word essay] * willfully failing to obey orders of superiors on multiple occasions * insubordination toward superiors * absent without leave (AWOL) * breaking restriction imposed by nonjudicial punishment 7. On 16 January 2001, the applicant provided a rebuttal statement saying he was not able to wake in the mornings. In addition on 2 March 2001 he stated, “I realize that I have a problem with being late, part of this problem is due to symptoms of depressions, which I am currently on medication for as of 28 Feb 01. The medication is called Cylexa which can cause some of these side effects: sleeplessness, dizziness, and dry mouth…I am very grateful that I am getting the chance to get the problem corrected with medication.” On 7 May 2001, he again attributed his missing formations to his depression. 8. On 15 July 2001, a bar to reenlistment was imposed against the applicant for the many infractions noted on the various counselling forms and because of imposition of nonjudicial punishment under the provisions of Article 15 of the UCMJ. 9. In an undated letter the applicant's immediate commander notified him in writing of her intent to initiate separation action against him for misconduct in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14- 12c, for the various infractions noted during the imposition of nonjudicial punishment and as documented on the multiple counseling forms. The commander recommended the applicant receive a General Discharge Certificate. She stated he had been counseled and through his subsequent behavior demonstrated a lack of acceptance of rehabilitative measures. 10. The applicant acknowledged receipt of the commander's intent to separate him on 24 August 2001. 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 further acknowledged that he: * understood he could expect to encounter substantial prejudice in civilian life if a discharge under 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 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, and he understood that an act of consideration by either board did not imply his discharge would be upgraded 11. He elected to submit a statement on his behalf wherein he acknowledged he had a pattern of misconduct but attributed it to his medical condition – depression. He said his depression made him sleep too much or sleep to little, no appetite to wanting to eat all the time. He did not like to be in trouble for he had a wife and child to support. He also suffered the loss of his grandmother while he was stationed in Hawaii. He asked for leniency and requested an honorable characterization of service. 12. Subsequent to his acknowledgement and consultation with counsel, his immediate commander initiated separation action against him due to misconduct, patterns of misconduct in accordance with Army Regulation 635-200, chapter 14. His intermediate commander recommended approval. 13. Consistent with the chain of command's recommendations, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 with his service characterized as under honorable conditions and furnished a General Discharge Certificate. 14. On 11 October 2001 his DD Form 214 confirms he was discharged for misconduct (Separation Code JKQ), under the provisions of Army Regulation 635-200, paragraph 14-12c, with his service characterized as under honorable conditions. He completed 2 years, 11 months, and 22 days of net active service this period. 15. The applicant petitioned the ADRB for a records review of his separation. On 25 October 2006, the ADRB voted to upgrade his characterization of service but elected not to change his reason for discharge. The ADRB stated the characterization of his service was too harsh and as a result it was inequitable. Their decisional document is Army Docket Number AR20050017673. Subsequent to the ADRB decision, the applicant’s under honorable conditions discharge was voided and he was issued a new DD Form 214 showing his service was honorable. 16. In the processing of this case, an Army Review Boards Agency psychologist reviewed the applicant’s military personnel records. Based on the available information, the Agency psychologist states there is insufficient information to support the applicant’s contention that he was diagnosed with depression while in the military and, consequently, should have received a medical separation. Based on the available information, there is no justification showing he failed to meet the medical retention standards of Army Regulation 40-501 (Standards of Military Fitness). He concludes by stating the applicant should send his medical and behavioral health service records so a medical determination can be make concerning his request. A copy of the complete medical advisory was provided to the Board for their review and consideration. 17. A copy of the medical advisory was mailed to the applicant for his response or rebuttal. He did not respond. 18. 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, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable condition 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 applicants' service. 19. 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 post-traumatic stress syndrome; traumatic brain injury; 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 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 misconduct that led to the discharge. 20. 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 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 a discharge, which may be warranted on equity or relief from injustice grounds. 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. The applicant’s contentions, medical concerns, and the advisory opinion were carefully considered. The applicant contends he was being treated for depression when he started a pattern of misconduct that led to his discharge. The medical advisory official opined there was not a boardable medical condition requiring referral to a medical evaluation board during his period of service. The applicant did not respond when afforded the opportunity to rebut the advisory. Based upon the preponderance of evidence, the Board agreed there was no error or injustice with the determination of his narrative reason for separation, and his reduction in rank was warranted. 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. 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 5, Section II (Secretarial Authority), states the separation of enlisted personnel for the convenience of the government is the prerogative of the Secretary of the Army. b. 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. c. 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. d. 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. * SPD JKQ is code for Soldiers separating under paragraph 14-12(c) of Army Regulation 635-200 by reason of misconduct * SPD KFF is the current code for use directed by the service secretary under the provisions of Army Regulation, Chapter 5, Section Il 4. Army Regulation 635-5 (Separation Documents), in effect at the time, established standardized policy for preparing and distributing the DD Form 214. This regulation stated the purpose of the separation document was to provide the individual with documentary evidence of his or her military service at the time of release from active duty, retirement, or discharge. It is important that information entered on the form is complete and accurate and reflects the conditions as they existed at the time of separation. The instructions stated to use the Enlisted Record Brief and orders to verify the entries on the DD Form 214. 5. Army Regulation 15-185 (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. 6. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) in effect at the time, established the Army Physical Disability Evaluation System (PDES) and set forth policies, responsibilities, and procedures that applied in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. a. Disability compensation is not an entitlement acquired by reason of service- incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. The case of a Soldier charged with an offense under the UCMJ or who is under investigation for an offense chargeable under the UCMJ which could result in dismissal or punitive discharge, may not be referred for, or continue, disability processing unless: * the investigation ends without charges * the officer exercising proper court-martial jurisdiction dismisses the charges * the officer exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such a sentence c. An enlisted Soldier may not be referred for, or continue, physical disability processing action when action has been started under any regulatory provision which authorizes a character 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. This authority may not be delegated. A case file may be so referred if the general court-martial convening authority finds the following: * the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions * other circumstances warrant disability processing instead of alternate administrative separation 7. Army Regulation 40-501 (Standard of Medical Fitness) provides medical retention standards and is used by medical evaluation boards to determine which medical conditions will be referred to a physical evaluation board (PEB). Paragraph 3-3 states Soldiers whose medical conditions fail retention standards are to be referred to a PEB as defined in Army Regulation 635-40. The PEB will make the determination of fitness or unfitness. a. Paragraph 3-31 (Disorders with psychotic features) the causes for referral to an MEB include diagnosed psychiatric conditions that fail to respond to treatment or restore the Soldier to full function with 1 year of onset of treatment. Mental disorders not secondary to intoxication, infections, toxic, or other organic causes, with gross impairment in reality testing, resulting in interference with social adjustment or with duty performance. b. Paragraph 3-32 (Mood disorders) the causes for referral to an MEB include persistent or recurrence of symptoms sufficient to require extended or recurrent hospitalization, limitations of duty or a duty protected environment or interfering with effective military performance. c. Paragraph 3-33 (Anxiety, somatoform or dissociative disorders) the causes for referral to an MEB include persistent or recurrence of symptoms require extended or recurrent hospitalization, limitations of duty or a duty protected environment or interfering with effective military performance. 8. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Court- Martial, United States, 1984. a. Nonjudicial punishment is imposed to correct misconduct in violation of the UCMJ. Such conduct may result from intentional disregard of or failure to comply with prescribed standards of military conduct. Nonpunitive measures usually deal with misconduct resulting from simple neglect, forgetfulness, laziness, inattention to instructions, sloppy habits, immaturity, difficulty in adjusting to disciplined military life, and similar deficiencies. These measures are primarily tools for teaching proper standards of conduct and performance and do not constitute punishment. Included among nonpunitive measures are: denial of pass or other privileges, counseling, administrative reduction in grade, administrative reprimands and admonitions, extra training, bar to reenlistment, and MOS reclassification. Certain commanders may administratively reduce enlisted personnel for inefficiency and other reasons. b. The grade from which reduced must be within the promotion authority of the imposing commander or of any officer subordinate to the imposing commander. 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 punishment was imposed, or is set aside or mitigated to forfeiture, the offender's date of rank in the grade held before the punishment was imposed remains unchanged. If a suspension of the reduction is vacated, the offender's date of rank in the grade to which reduced as a result of the vacation action is the date the punishment was originally imposed, regardless of the date the punishment was suspended or vacated. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160016691 7 1