ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 December 2019 DOCKET NUMBER: AR20170000346 APPLICANT REQUESTS: reconsideration of his previous request for an upgrade of his under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Reconsideration memorandum * Department of Veterans Affairs (VA) progress notes 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 (ABCMR) in Docket Number AR20150004780, on 18 August 2016. 2. The applicant states a. He disagrees with a few of the points made in the previous decision. He had included in his letter dated July 22, 2016, that he would be submitting evidence from his session with his psychiatrist, on 21 July regarding his views on of the post-traumatic stress disorder (PTSD) and his discharge. The Board did not include this statement or the evidence he later provided in Consideration of Evidence: Part 14 (A) and (B) on page 5. He is now including these Progress Notes for the Board's review again and the section below is his statement. These records are available through the VA Palo Alto Health Care System. The statement is as follows "The veteran suffered from acute PTSD symptoms precipitated by the Persian Gulf War and his PTSD was behaviorally manifest while in Germany, which lead to his general discharge. He is in the process of applying for reversal of his general honorable discharge as the symptoms he had at the time was consistent with the PTSD symptoms stemming from Persian Gulf War traumatic experiences". b. He was not aware that he had PTSD until visiting the San Jose Vet Center on Veteran's Day, 11 November 2012, when it was pointed out to him. He was scheduled an appointment to discuss the matter and they created a nexus letter for him to file a claim. However, without the proper diagnosis from his psychiatrist later in 2014, the VA would not award him a service-connection for PTSD. Therefore, for the past 20 years, he has dealt with a number of issues in his personal and professional life, not realizing that these difficulties were a result of PTSD. Had he been diagnosed correctly with PTSD at the time of his separation, he would have been receiving the care and treatment necessary to cope with this condition. c. As for Consideration of Evidence: Part 4) on page 2; point being made about "deliberately falling out of company runs," he had a knee condition that was aggravated by the service since he had injured his knee during my 3rd advanced individual training for 63Y while temporarily assigned to Aberdeen Proving Ground, MD. This training unit would not release him with a prior physical training (PT) test and he had to disregard his own profile to complete his 2-mile run to exit training. He had a "march and run" at his own pace profile while at training. Due to being forced to wear running shoes, which he never wore and run strictly on asphalt, he injured his knee. d. In his previous duty station in Friedberg, Germany, they wore whichever footgear was desired including boots and ran mostly back roads and uneven surfaces. With his following duty station in Darmstadt, Germany; his first sergeant was understanding and allowed him to run at his own pace. They were discussing a bike profile for his PT test before the Gulf War; unfortunately it never was written. As for Consideration of Evidence: Part 11) on page 3; he could not petition the Board for a discharge upgrade within the 15-year statute if he were unaware of my PTSD condition which was not officially diagnosed by the VA until 2014. Along with Part 1 on page 1; regarding the filing for correction within 3 years, he was residing in Germany and services were not available for veterans at that time (1992-1995). 3. Review of the applicant's service records shows: a. Having had prior service in the U.S. Army Reserve, he enlisted in the Regular Army on 23 May 1986. He held military occupational specialties 53D (Field Artillery Systems Mechanic) and 63Y (Track Vehicle Mechanic). b. He served in Germany from December 1987 to April 1990 and from July 1990 to March 1992. He also served in Southwest Asia from 21 December 1990 to 12 June 1991, with the 9th Engineer Battalion. c. His service records show members of his chain of command frequently counseled him for various infractions, including: * failing to obey orders; multiple instances of missing formations * being consistently late for training, work calls, and/or formations * not being recommended for promotion; taking extra newspapers from the paper machine, and unacceptable attitude toward the Army * deliberately falling out of company runs; failing to report to his appointed place of duty and displaying apathy and bad attitude d. On 13 February 1992, he accepted nonjudicial punishment under the provisions of Article 15 for failing to go at the time prescribed to his appointed place of duty. His punishment consisted of a reduction to E-3, a forfeiture of pay, and extra duty. e. On 18 March 1992, the applicant’s immediate commander notified him of his intention to initiate separation action against him in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for misconduct – pattern of misconduct. The specific reason is cited as the applicant's misconduct (failing to go to his appointed place of duty, frequent counseling for missing formations, not reporting to duty, and being late to formations). His actions were prejudicial to the good order and discipline of the unit. The commander recommended the issuance of a general discharge. f. He acknowledged receipt of the commander's intent to separate him. He consulted with legal counsel who advised him of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on future enlistments or reenlistments, the possible effects of this discharge, and of the procedures/rights that were available to him. He waived consideration of his case by a separation board and/or a personal appearance before a separation board and elected not to submit a statement. He acknowledged he understood that: * he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge g. Subsequent to his acknowledgement, his immediate commander initiated separation action against him in accordance with paragraph 14-12b, of AR 635-200, for misconduct. His intermediate commander recommended approval with the issuance of a General Discharge Certificate. h. On 19 March 1992, the separation authority approved the applicant's discharge from the Army under the provisions of AR 635-200, paragraph 14-12b, with an under honorable conditions (general) discharge. The applicant was accordingly discharged on 30 March 1992. i. His DD Form 214, as amended by his DD Form 215 (Correction to DD Form 214), shows he was discharged under the provisions of paragraph 14-12b of AR 635-200 due to misconduct with a general characterization of service. He completed 5 years, 10 months, and 8 days of net active service this period. His DD Form 214 listed his narrative reason for separation as "Misconduct-Pattern of Misconduct," the separation code as "JKM," and the RE code of "3." j. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. k. He provides post-discharge progress notes, dated July 2016 that show the entry "the veteran suffered from acute PTSD symptoms precipitated by the Persian Gulf War and his PTSD was behaviorally manifest while he was in Germany, which lead to his general discharge. He is in the process of applying for reversal of his general honorable discharge as the symptoms he had at the time was consistent with PTSD symptoms stemming from Persian Gulf War traumatic experiences." l. In July 2016, and in connection with his previous application for an upgrade of his discharge due to PTSD, the Board forwarded his VA rating decision to The Office of The Surgeon General (OTSG) for review to determine if there was a nexus between his claim of PTSD and the misconduct that led to his discharge. OTSG rendered an advisory opinion on 27 July 2016. An OTSG official stated: (1) On 4 March 1992, the applicant was evaluated by a behavioral health (BH) provider who did not find that a BH condition was present and was psychiatrically cleared for administrative separation. He was first seen at the VA on 7 October 2014 and was diagnosed with PTSD based on his combat experience in the Persian Gulf. It was further noted that his social and occupational functioning was impaired by PTSD symptoms. On 23 December 2014, the VA granted service connection for PTSD at 70% evaluation, effective March 2014. According to his 30 October 2015 PTSD review evaluation, he continued to meet criteria for PTSD and maintain his previous level of functioning. (2) There are no BH records during his time of service that indicate he met the criteria for PTSD or any other BH condition at the time of his separation. Furthermore, his own responses to the many counseling statements he received for lateness made no mention of a possible medical cause or his behavior. Also of note is the 22-year gap between his discharge and seeking treatment. He has been diagnosed with PTSD, a condition that can contribute to infractions such as those for which he was discharged. However, there is no information provided that links PTSD symptoms to his misconduct. OTSG officials are unable to determine if his separation was due to a BH condition. m. On 22 July 2016, the applicant responded to the advisory opinion and stated that he had been receiving outpatient treatment from the San Jose Vet Center since November 2012. The Board should request his records from the Vet Center and review them. He meets with a psychiatrist on a quarterly basis and they discuss the events with him. It took him almost 2 years before he got a diagnosis of PTSD. He attached a statement, dated 19 July 2016, from the San Jose Vet Center. It states that he has been assessed for PTSD as a result of trauma he experienced during the Gulf War. He currently receives readjustment counseling (psychotherapy and psycho education). He has been receiving this therapy since November 2012. n. On 18 August 2016, the Board denied his request and determined that the evidence presented does not demonstrate the existence of a probable error or injustice. The Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 4. The Army Review Boards Agency (ARBA) psychologist reviewed his case for medical condition (s) not considered during the separation physical process. Specifically, * Does available record reasonably support PTSD or another behavioral health condition, existed at the time of the applicant's military service? * Did these conditions fail medical retention standards in accordance with AR 40-501, warranting a separation through medical channels? * Is this condition(s) a mitigating factor in the misconduct that resulted in the applicant's discharge from the military? * Any additional information deemed appropriate. Following this medical review, the ARBA psychologist rendered an advisory opinion on 6 November 2019 and stated: a. Review of applicant's hardcopy military and medical military records indicate he served in the Army Reserves and entered Active Duty on 23 May 1986. He deployed to Saudi Arabia in 1 990 and participated in the invasion of Iraq. He received multiple counseling statements and Article 15s for various offenses to include failure to report, lateness, and theft. On 4 Mar 1 992, he was evaluated by a behavioral health provider found to have no behavioral health diagnoses and was determined to meet retention standards in accordance with AR 40-501. On 30 Mar 1992, he was discharged from the Army in accordance with AR 635-200, Chapter 14. b. In regard to the questions outlined above: (a) In accordance with the 3 Sep 20 1 4 Secretary of Defense Liberal Guidance Memorandum , there is documentation to support the existence of a behavioral health condition at the time of discharge; (b) The available records indicate that the applicant did meet medical retention standards with respect to behavioral health diagnoses IAW AR 40-501; (c) PTSD is considered a mitigating factor for the missed formations and failure to report but is considered a mitigating factor for theft thus there is partial mitigation of the misconduct that led to his discharge. 6. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal and/or additional comments. He did not respond. 7. By regulation, misconduct includes 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. An under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for misconduct. 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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board found relief was warranted. Based upon the lengthy period of honorable service completed, the type of misconduct leading to the separation, and the mitigation of some of that misconduct based upon the applicant’s PTSD, the Board concluded that upgrading the characterization of service to Honorable was appropriate. 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. 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) 635-200 (Personnel Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, to include abuse of illegal drugs; convictions by civil authorities, and desertion or absence without leave. Action would be taken to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. Paragraph 14-12 prescribes the conditions that subject Soldiers to discharge for misconduct. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. 2. AR 635-5-1 (Separation Program Designator (SPD)) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The regulation in effect at the time of his discharge stated the SPD code of JKM was the appropriate code to assign to Soldiers separated under the provisions of AR 635-200, paragraph 14-12b due to misconduct – pattern of misconduct. 3. 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 individuals 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. Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. 4. 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. 5. 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. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170000346 7 1