ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 April 2019 DOCKET NUMBER: AR20170000223 APPLICANT REQUESTS: upgrade of his general, under honorable conditions discharge to an honorable discharge 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) for the period ending 5 June 2009 * Department of Veterans Affairs (VA) Rating Decision, dated 9 March 2016 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 (ABCMR) 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 a general, under honorable conditions discharge for reasons pertaining to his post-traumatic stress disorder (PTSD) and traumatic brain injury incurred during combat operations. He is currently 100 percent service-connected disabled by the VA. He does not feel the reason for his discharge was carried out properly considering his combat related injuries and illnesses. He concludes by stating he cannot use all his State VA benefits due to his characterization of service. 3.  The applicant enlisted in the Regular Army on 3 August 1999 in the rank of private/pay grade E-1. 4.  A review of his Enlisted Record Brief and DD Form 214 shows he had two combat related foreign service tours of duty: * Service in Kuwait from 15 April to 21 August 2000 * Service in Iraq from 15 June to 15 December 2003 5.  While in Iraq he was awarded the Combat Infantryman Badge by Permanent Orders Number 339-90 issued on 5 December 2003 for action on 8 October 2003. 6.  He was promoted to staff sergeant (SSG)/pay grade E-6 effective 1 September 2005 as shown on his Enlisted Record Brief. 7.  On or about 9 August 2007 he was assigned to Fort Sill, Oklahoma as a training noncommissioned officer (NCO). From there he enrolled in Drill Sergeant School at the U.S. Army Maneuver Support Center NCO Academy, Fort Leonard Wood, Missouri. 8.  On or about 6 May 2008 he was disenrolled from the school for disciplinary reasons because he went absent without leave (AWOL) from the school. Further, the command sergeant major recommended his removal from the Drill Sergeant Program. There is a DA Form 4856 (Developmental Counseling Form) documenting the facts and circumstances of the applicant’s actions. He apparently had departed the school without an authorized pass on 3 May 2008 and was reported AWOL on 5 May 2008. 9.  He received a referred DA Form 1059 (Service School Academic Evaluation Report) for the reporting period ending on 6 May 2008. He had failed to achieve course standards due to violating the Uniform Code of Military Justice (UMCJ) by going AWOL. This action demonstrated unsatisfactory leadership skills and a complete disregard of and failure to inculcate all of the Army core values. He was advised of his rights and chose not to provide a rebuttal statement. 10.  On 14 May 2008, he accepted nonjudical punishment under the provisions of Article 15, UMCJ for failure to go at the time prescribed to his appointed place of duty (0430 hours accountability formation on 5 May 2008 to 0600 hours on 6 May 2008). His punishment included reduction to the rank of sergeant (SGT)/pay grade E-5, forfeiture of pay, restriction and extra duty within his unit area. The applicant did not appeal. 11.  On 19 February 2009, a second nonjudical punishment under the provisions of Article 15, UMCJ was initiated against the applicant for violating a brigade commander’s policy memorandum concerning financial transactions between staff and Soldiers in training. The facts are on or about 3 November 2008, he wrongfully accepted a money order in the amount of $585.00 from a Soldier in a training status. In addition, he accepted $200.00 in United States currency from another Soldier who also was in a training status. The findings of this specific nonjudicial punishment are not available for review as it is incomplete and part of his administrative separation action. However, his record (administrative separation action) does contain the sworn statements and related evidence to support the initiation of nonjudicial punishment. 12.  In an undated letter the applicant's immediate commander notified him of his intent to initiate separation action against him for misconduct, commission of a serious offense, in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for AWOL and wrongfully accepting money from two Soldiers in training violating both Army regulations and brigade policy memorandums. In addition, he was arrested by civilian authorities for writing bogus checks on a bank account that was closed. He stated he had been counseled and through his subsequent behavior demonstrated a lack of acceptance of rehabilitative measures. 13.  On 11 March 2009, the applicant prepared a memorandum wherein he requested an under honorable conditions discharge (general) vice a characterization of under other than honorable conditions. He asked that his 9 years of service be the deciding factor in his separation case. With his request, he submitted a packet entailing all his authorized awards, training certificates and a general officer letter of appreciation he had received throughout his period of service. He stated he took full responsibility for his actions. He concluded his statement by stating, "I just feel that all my blood, sweat, and tears shed during my time in service are worth more than an Other Than Honorable Discharge Certificate." [His supporting documents are part of his administrative separation action filed in his official military personnel record.] 14.  The applicant acknowledged receipt of the commander's intent to separate him on 17 April 2009. 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: * requested consideration of his case by an administrative separation board, if his service was characterized no less favorably than under honorable conditions * requested a personal appearance before an administrative separation board, if his service was characterized no less favorably than under honorable conditions * he elected to submit statements on his own behalf * understood he could expect to encounter substantial prejudice in civilian life if a discharge under other than 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 other than honorable conditions * understood if he received a discharge characterization of less than honorable, he could make an application to the Army Discharge Review Board or the ABCMR for an upgrade, but he understood that an act of consideration by either board did not imply his discharge would be upgraded 15.  Subsequent to this acknowledgement and consultation with counsel, his immediate commander initiated separation action against him due to commission of a serious offense (misconduct) in accordance with Army Regulation 635-200, paragraph 14-12c. His immediate commander recommended he receive an under other than honorable conditions characterization of service. Of note, the separation memorandum states, "If the intermediate commander recommends and/or the separation authority indicates willingness to approve a characterization of other than honorable conditions, the separation must be reinitiated using the administrative board process." 16.  The intermediate commander recommended the applicant be separated prior to his expiration of his term of service with issuance of a General Discharge Certificate. 17.  He prepared DD Form 2807-1 (Report of Medical History) wherein he stated he was undergoing a separation physical. In item 17 he answered "Yes" to frequent trouble sleeping, had received counseling and was being treated or evaluated for a mental condition. He then explained he had PTSD with insomnia and was receiving counseling for PTSD. [He did not provide evidence to support his contention.] The medical examiner reviewed this form with the applicant and wrote, "Good health." 18.  On 4 May 2009, he underwent a physical examination in preparation for his separation. A DD Form 2808 (Report of Medical Examination) was prepared. The medical provider indicated there were no physical defects or diagnoses and based on that finding he had no recommendations or referrals for specialist examinations. The applicant was found qualified for continued service with no profile limitations or restrictions. 19.  On 19 May 2009, as required by regulation, the applicant underwent a mental status evaluation by a clinical psychologist. During the evaluation the applicant’s behavior was normal, he was fully alert and fully oriented. His mood or affect was unremarkable with a clear thought process and normal thought content. His memory was good. In the psychologist’s medical opinion he stated the applicant did not have a psychiatric disease or defect that warranted disposition through medical channels. He had the mental capacity to understand and participate in separation proceedings to include being mentally responsible. The pertinent medical notes said he had undergone a traumatic brain injury screening on 12 February 2008 which was negative as well as a screening for PTSD was negative. It was noted he had been treated for anxiety symptoms and had a prescription for a mood stabilizer. He concluded his evaluation by stating the applicant met the medical retention standards of Chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness) because he had no psychiatric disease or defect that would warrant processing through the disability evaluation system. 20.  On 1 June 2009, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200. He directed the applicant receive a service characterization of under honorable conditions and furnished a General Discharge Certificate. 21.  On 5 June 2009 his DD Form 214 confirms he was discharged for commission of a serious offense (Separation Code JKQ), under the provisions of Army Regulation 635-200, paragraph 14-12c, with his service characterized as under honorable conditions (general). He completed 9 years, 10 months, and 3 days of net active service this period. Among the awards shown on his DD Form 214 and DD Form 215 (Correction to DD Form 214) are the – * Army Commendation Medal (3rd Award) * Army Achievement Medal (3rd Award) * Iraq Campaign Medal with one bronze service star * Combat Infantryman Badge 22.  In support of his application the applicant provided his VA benefits decision letter dated 9 March 2016 showing he is being compensated for – * Post-concussive headaches – 50 percent * PTSD to include traumatic brain injury – 70 percent 23.  On 19 May 2017, the Army Review Boards Agency (ARBA) staff psychologist provided an advisory opinion. The advisory found the available documentation showed the applicant met medical retention standards for all medical conditions and there was no indication for physical disability evaluation system processing. There was a mitigating nexus between his mental health and his AWOL status. However, there was no nexus for his other acts of misconduct. There is medical evidence that during his period of active duty he did receive treatment for PTSD, adjustment disorder, panic disorder, martial problems and parent/child relational problems. Notwithstanding his treatment history there is no available evidence supporting a change to his narrative reason for separation. A copy of the complete medical advisory was provided to the Board for their review and consideration. 24.  The applicant was provided a copy of the advisory opinion on 23 May 2017 and given an opportunity to submit comments. He did not respond. 25.  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. 26.  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. 27.  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, to include DoD guidance relating to liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not appropriate. Based upon the multiple misconduct and the applicant already receiving an Under Honorable Conditions (General) Discharge Certificate, the Board concluded that the characterization of service received at the time of discharge was appropriate. For that reason, the Board recommended denying the applicant’s request for relief. 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. 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. 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. ABCMR Record of Proceedings (cont) AR20170000223 7 1