ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 May 2019 DOCKET NUMBER: AR20170000701 APPLICANT REQUESTS: a character of discharge upgrade from under other than honorable conditions because of Post-Traumatic Stress Disorder (PTSD) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 that he believes he suffers from PTSD and he did not have his mental health evaluated before being separated from service. 3. A review of his service records shows: a. He enlisted in the Regular Army (RA) on 22 November 1989. b. He served in Germany from 23 April 1990 to 31 July 1991, with a tour in Southwest Asia from 25 December 1990 to 28 May 1991. c. He was reported absent without leave (AWOL) on 9 January 1992, and dropped from rolls (DFR) on 8 February 1992. d. Court marital charges were preferred on 4 June 1992. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of AWOL for a period of 31 days, from 9 January 1992 through 9 February 1992. e. He consulted with legal counsel on 24 June 1992, and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). He acknowledged: a. * if his request was accepted, he may be discharged under other than honorable conditions and furnished an under other than honorable conditions discharge * he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a Veteran under both Federal and State law * he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge f. Consistent with the chain of command recommendation, on 2 July 1992, the separation authority approved the applicant’s request with an undesirable discharge. g. On 13 July 1992, he was discharged from active duty. His DD Form 214 shows he was discharged under other than honorable conditions characterization of service, under the provisions of AR 635-200, Chapter 10 (In Lieu of Trial by Court-Martial). He completed 2 years, 3 months and 11 days of active service. He had 164 lost days, from 9 January 1992 to 10 February 1992, and 3 March 1992 to 13 July 1992. h. He was authorized or awarded: * Southwest Asia Service Medal with 2 Bronze Services Stars (BSS) * Saudi Arabia/Kuwait Liberation Medal * Combat Infantryman Badge * Army Commendation Medal * National Defense Service Medal * Air Assault Badge * Army Service Ribbon * Expert Marksmanship Badge with Hand Grenade Bar * Marksman Marksmanship Badge with Rifle Bar (M16) 4. 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 30 May 2017. The psychologist opined: a. The applicant did not provide any evidence from a licensed professional of any mental health diagnosis. The available records did not show him as having mental health problems during his active duty service. There is insufficient evidence to mitigate the applicant’s misconduct in the case on the basis of mental health conditions. b. The applicant did not at the time of discharge have a boardable medical condition, and met mental health standards in AR 40-501 (Medical Services – Standards of Medical Fitness) and AR 635-40 (Physical Evaluation for Retention, Retirement or Separation). a. c. Available case material did not support the existence of a mitigating mental health condition at the time of his misconduct. The available records do not show an exit medical exam as required by Title 10, USC. d. The applicant did meet medical retention standards in accordance with AR 40-501, Chapter 3 (Medical Fitness Standards), and following the provisions set forth in AR 635-40 that were applicable to the applicant’s era of service. e. A review of available documentation did not discover evidence of a mental health consideration that bears on the character of the discharge in this case. A mitigating nexus between the applicant’s misconduct and his mental health was not discovered. 5. The applicant was provided with a copy of this advisory opinion for review and an opportunity to submit a rebuttal, but he did not respond. 6. By regulation (AR 635-40), the mere presences of an 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 soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. 7. By regulation, an individual who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. An Undesirable Discharge Certificate will normally be furnished an individual who is discharged for the good of the service. 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 determined that relief was not warranted. Based upon the medical advisory finding no mitigating nexus between the applicant’s misconduct and his mental health, the Board concluded there was insufficient evidence or justification for changing the characterization of service of the applicant. 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. 5/10/2019 X CHAIRPERSON Signed by: 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 (AR) 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate. a. Paragraph 3-7a stated that 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. b. Paragraph 3-7b stated that 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. 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. 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating. 4. AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation including retirement. 5. 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 1. 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. 6. 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.