IN THE CASE OF: BOARD DATE: 24 February 2020 DOCKET NUMBER: AR20170001730 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC discharge be upgraded to an honorable discharge (HD) due to post-traumatic stress disorder (PTSD). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Medical documents FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the 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. After having prior enlisted service in the Regular Army, the applicant reenlisted in the Regular Army on 1 March 1994. 3. He applicant accepted nonjudicial on the following occasions: * 8 August 1994, for failing to be at his appointed place of duty * 29 February 1996, for wrongfully using marijuana * 7 November 1996, for wrongfully using marijuana 4. On 9 May 1996, the applicant was seen by a behavioral health provider and diagnosed with Depressive Disorder, NOS, due to work difficulties and severe back pain. His provider noted the applicant was enrolled in the Alcohol and Drug Abuse Prevention and Control Program. He also noted the applicant met retention standards. 5. On 23 August 1996, he was seen by a psychiatrist and was found to meet behavioral health retention standards. 6. The applicant was examined on 26 September 1996, and was found to be qualified for a Physical Evaluation Board (PEB)/Medical Evaluation Board) due to chronic back pain with a P3 profile. His record is void of documents referring him to the MEB/PEB. 7. The applicant's complete separation packet is not available for review; however, the available record shows on 15 January 1997, a Board of Officers was appointed to decide whether the applicant should be discharge due to the commission of a serious offense. 8. The Board of Officers found the applicant did wrongfully use a controlled substance and warranted separation for the commission of a serious. 9. On 27 February 1997, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separation), paragraph 14-12c, for the commission of a serious offense. He directed he receive an UOTHC Discharge Certificate. 10. In accordance with the separation authority's decision, on 27 February 1997, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 12c (2), due to Misconduct. His character of service was listed as UOTHC. He completed 2 years, 11 months, and 27 days of net active service this period. He was awarded or authorized the National Defense Service Medal, Army Service Ribbon, and the Driver and Mechanic Badge with Driver Bar. 11. On 27 January 2020, ABCMR obtained an advisory opinion from a medical advisor with Army Review Boards Agency (ARBA), who states, in part, there is documentation to support the existence of a behavioral health condition at the time of discharge. The available records indicate the applicant met medical retention standards. Depression is not a mitigating factor for the misconduct that led to his discharge. The VA diagnosis of PTSD is not service connected and based on available documentation in his military record, the applicant did not serve a combat tour during his military service. A copy of the complete medical advisory was provided to the Board for their review and consideration. 12. On 3 February 2020, the applicant was provided a copy of the opinion and given the opportunity for comment or rebuttal. He did not respond. 13. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. 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 appropriate for a Soldier discharged under this chapter. 14. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (PDES) 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. 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 15. In reaching its determination, the Board can consider the applicant's petition, his statements, and available service record, in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, his medical records, regulatory requirements, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, and the character and reason for his separation. The Board noted the facts presented above. 2. The Board noted that at the time of his discharge, the records indicate the applicant met medical retention standards. The Board noted that depression is not a mitigating factor for the misconduct that led to his discharge. The Board further noted that the VA diagnosis of PTSD is not service connected. Based on available documentation in his military record, the applicant did not serve a combat tour during his military service that might have contributed to PTSD. 3. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was insufficient post-service evidence to justify a clemency determination. The Board found the character of service equitable under the circumstances. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 4. After reviewing the application and all supporting documents, the Board found that relief is not warranted. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3 year statute of limitations if the Army Board for Correction of Military Records (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. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. An under other than honorable conditions discharge is normally considered appropriate. a. Paragraph 3-7a states that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. b. Paragraph 3-7b states 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. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System 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. a. 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 b. 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 4. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 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 considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC 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; traumatic brain injury (TBI); 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. 7. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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 characterized. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170001730 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1