ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 June 2019 DOCKET NUMBER: AR20170001115 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions discharge to under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in lieu of DD Form 149 (Application for Correction of Military Record) * DD Form 214 * DA Form 638 (Recommendation for Award) * Army Good Conduct Medal Certificate * Army Achievement Medal Certificate * Certificate of Achievement * 37 pages of in-service and post-service medical records 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 (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: a. Hazing and harassment caused post-traumatic stress disorder (PTSD) and depression. He self-medicated with alcohol. He believes he suffers from PTSD and chronic depression due to his military service. b. When he got out of initial training and became a Ranger, there was a period that all the new guys were hazed. He knew the Rangers were a lot of hard work but it was more than that. Exercises normally were given as punishment and were given to them hours before they were supposed to wake up for physical training. They were degraded, told to be killers, and jumped by veteran Soldiers during what was supposed to be hand to hand combat. c. His stress level was so high from the abuse that he had to get away so he left to recuperate but was late going back to line up. So they kicked him out in June 1998. Secretly, it was a relief. No more mental torture, degrading, and brain washing. d. He did well in the regular service, always excelled, and wanted to move up. He is providing some of his awards and recommendations. He was in a good place until one of his superiors started harassing him. Everyone liked him but him. His superior would do the same things they did to him in Ranger training. Degrading and saying he was not man enough because he could not take it as a Ranger. He said that he would make things much worse for him and that he would never get promoted if he opened his mouth. e. He started drinking to get through it and to not think about it. He was sent to a counselor but he was always told that talking about feelings was for girls. The doctors wanted to put him on medicine but he was not about to admit that he was weak by taking that stuff. The medicine made him feel bad so he just quit. Later on he learned that some medicines can make symptoms worse. All he wanted was to drink so he would not feel weak. It made him feel better. This kept going on for a long time but his superior got worse. He started drinking and taking the medicine. This is when he started getting in trouble. He was not himself. He was young and did not think anyone would believe he was being harassed and it reminded him of being hazed as a Ranger. f. The last eight months of his service is the only time he got in trouble. He was exemplary before all the threats began. He has been in therapy since and now understands more about his PTSD and depression. 3. The applicant enlisted in the Regular Army on 6 June 1997. His DA Form 20 (Personnel Qualification Record – Part II) shows he completed initial entry and airborne training and was reassigned to the 75th Ranger Regiment on 30 October 1997 for training. 4. On an unspecified date, the applicant was reassigned to Fort Drum, NY. 5. The applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 11 September 2000, for getting arrested two times (1 August and 6 August 2000) and charged with assault. The punishment consisted on 14 days restriction and extra duty. He was also ordered to abstain from alcohol consumption. 6. On 9 November 2000, the applicant received a General Officer Memorandum of Reprimand for driving under the influence (DUI) of alcohol. 7. The applicant received NJP under the provision of Article 15, UCMJ, on 29 November 2000, for two specifications of disobeying a lawful command to not consume alcohol and for disobeying a lawful command to not leave the boundaries of Fort Drum. 8. On 16 January 2001, the applicant's immediate commander notified him of his intent to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for serious misconduct, with an under other than honorable conditions characterization of service. The commander stated the reasons for the proposed separation action were that the applicant was arrested five times and charged with assault on 1 and 6 August 2000, his arrest for DUI on 30 October 2000, wrongfully consuming alcohol on 21 and 30 October 2000 after being ordered by his commander not to, and disobeying his commander by leaving the boundaries of Fort Drum. He was advised of his right to: * consult with legal counsel * present his case before an administrative separation board * submit statements in his own behalf * waive his rights in writing 9. The applicant consulted with legal counsel and he was advised of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, paragraph 14-12c. He waived consideration of his case by an administrative separation and board and elected no to submit a statement in his own behalf. 10. On 26 March 2001, the separation authority approved the recommendation for separation under the provisions of Army Regulation 635-200, paragraph 14-12c, and directed the issuance of an under other than honorable conditions discharge. On 2 April 2001, he was discharged accordingly. 11. The Army Discharge Review Board denied the applicant's request for an upgrade of his discharge on 8 September 2011. 12. The applicant provided a DA Form 638 and awards certificates which he received during his active duty service. He also provided 37 pages of in-service and post-service medical records showing he was diagnosed with anxiety and depression. 13. On 15 August 2018, the Army Review Boards Agency psychiatrist/medical advisor provided a medical advisory opinion. The opinion found insufficient evidence to support the applicant’s contention that his misconduct was due to the presence of PTSD and depression and is mitigated by said diagnoses. The applicant’s records indicate clearly that he suffered from major depressive disorder while on active duty. Unfortunately, a diagnosis of major depressive disorder does not mitigate the offenses of assault, driving under the influence of alcohol or disobeying a legal order as these offenses are not known symptoms of major depressive disorder. The applicant contends that he developed PTSD as a result of being abused and harassed during Ranger training and while in the Army. However, his military records do not support a diagnosis of PTSD. His civilian medical records, while listing PTSD as a possible area of discussion in a psychiatric review of systems, also do not diagnose the applicant with PTSD. Based on these factors, there is insufficient evidence to support the applicant’s contention that his misconduct was due to PTSD he developed while on active duty. A copy of the complete medical advisory was provided to the Board for their review and consideration. 14. The applicant was provided a copy of the advisory opinion on 15 August 2018 and given an opportunity to submit comments. He did not respond. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, the medical advisory opinion and published DoD guidance for liberal consideration of discharge upgrade requests. The Board discussed the applicant’s service record, his statement regarding PTSD, the frequency and nature of his misconduct and the conclusion of the advising official who found insufficient evidence of PTSD while in service and a lack of mitigation for the misconduct and the application of liberal consideration. Based on the evidence and the advisory opinion, the Board determined that liberal consideration was not applicable and that the character of service the applicant received was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not 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 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 14 of this regulation establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally considered appropriate. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. b. Paragraph 3-7b states 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. 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 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. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to the Service Discharge Review Boards (DRBs) and Service 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 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. 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.