IN THE CASE OF: BOARD DATE: 19 March 2020 DOCKET NUMBER: AR20170003553 APPLICANT REQUESTS: in effect, an upgrade of his narrative reason for separation to a more favorable narrative reason. 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), dated 26 January 2017 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. The applicant states, in effect, that his narrative reason for discharge is preventing him from obtaining education benefits through the Department of Veterans Affairs (VA). 3. On 6 July 2011, the applicant enlisted in the Regular Army. 4. His record shows that he completed foreign service (deployment) in Afghanistan from 25 June 2012 to 9 March 2013. The highest grade held was private first class (PFC/E-3). 5. After returning from deployment, while assigned to the 1st Squadron, 91st Cavalry Regiment, Germany, as a food service specialist, the applicant received negative performance counseling for the following infractions: * failing to report to his appointed place of duty and failing to obey the order of a senior noncommissioned officer (NCO), 1 September 2013 * being late for duty, 2 September 2013 * being late for duty, 3 September 2013 * failing to report to his appointed place of duty, 6 September 2013 * failing to report to first formation and reporting late to duty, 12 September 2013 * failing to report to first formation, 19 September 2013 * failing to report to motor pool, 2 October 2013 6. On 2 October 2013, he underwent a medical evaluation. His record contains a DA Form 3822 (Report of Mental Status Evaluation), which cleared the applicant for administrative separation under Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 14-12, misconduct. This report shows: * the applicant was found fit for duty, including deployment * he could understand and participate in administrative proceedings * he could appreciate the difference between right and wrong * he met medical retention requirements * the applicant had a positive screening for post-traumatic stress disorder (PTSD) and Mild Traumatic Brain Injury (mTBI), which did not meet AR 40-501 (Standards of Medical Fitness) criteria for a medical evaluation board * his command was advised to consider the influence of these conditions when determining final disposition * the applicant screened negative for substance abuse disorder * he was referred to Psychiatry to discuss pharmacological treatments for insomnia, depression, and PTSD symptoms * applicant verbalized a desire for chapter to proceed 7. On 10 October 2013, he accepted nonjudicial punishment under the Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty on two occasions. His punishment included reduction to private (PV2/E-2), forfeiture of pay, extra duty, and restriction. 8. He was counseled, on 15 October 2013, for deliberately disregarding the direct order of a NCO. This counseling also advised the applicant of his possible involuntary separation in accordance with AR 635-200. 9. On 7 November 2013, the applicant tested positive for Tetrahydrocannabinol (THC) and his commander received notification of the positive urinalysis on 25 November 2013. 10. On 4 December 2013, his immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of AR 635-200 paragraph 14-12c(2), for abuse of illegal drugs. As reason for this action, his commander cited the applicant's positive urinalysis test listed above. The commander recommended the applicant receive a general discharge. a. The applicant acknowledged receipt of his commander's notification memorandum on 9 December 2013. b. He consulted with legal counsel on 10 December 2013 and he 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. c. He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he was issued a less than fully honorable discharge. d. He acknowledged he understood that if he received a discharge/character of service which is less than honorable, he may make application to the Army Discharge Review Board (ADRB) or this Board for upgrading. However, he realized that an act of consideration by either board did not imply that either Board would upgrade his discharge. 12. On 13 December 2013, the applicant's squadron commander concurred with recommendation of the applicant's immediate commander. 13. On 19 December 2013, the separation authority directed the applicant's separation prior to the expiration of his current term of service, that he not be transferred to the Individual Ready Reserve; approved his discharge under the provisions of AR 635-200, paragraph 14-12c(2), drug abuse, and directed the issuance of a General Discharge Certificate. 14. The applicant was discharged on 23 January 2014. His service was characterized as under honorable conditions (general) by reason of misconduct, drug abuse. 15. The applicant subsequently applied to the ADRB for an upgrade of his discharge, and on 11 January 2017, the ADRB, in accordance with the Secretary of Defense's guidance directing liberal consideration when reviewing discharge upgrade requests from veterans claiming PTSD, granted the following relief: * an upgrade of the characterization of his service to "honorable" * changed the separation authority to AR 635-200, Chapter 14-12a * changed the narrative reason for separation to Misconduct (Minor Infractions) * changed the separation code to JKN and the reentry code to RE-3 16. The Board does not determine eligibility for VA benefits; however, regulatory guidance found in AR 635-200, chapter 14, and the Secretary of Defense's guidance for liberal consideration of requests for upgrades involving applicant's claiming/diagnosed with PTSD, permit the Board to change the characterization, narrative reason, and authority of an applicant's discharge. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant the applicant’s request for an Honorable Discharge and a more favorable narrative reason for separation. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and found insufficient evidence of error, injustice, or inequity; the applicant had limited creditable service and insufficient evidence of mitigating circumstances for the misconduct. Neither did the Board find sufficient evidence of post-service honorable conduct that might have mitigated the misconduct that resulted in the discharge characterization and narrative reason. The Board agreed that the applicant’s discharge characterization and narrative reason are appropriate. 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. The Secretary of Defense provided clarifying guidance to Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) on 25 August 2017, regarding previously issued directives regarding the consideration of certain applicants' requests for discharge upgrade. The memorandum directed the DRBs and BCM/NRs to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, TBI, sexual assault, or sexual harassment. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 3. Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) states in Chapter 5: a. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee as announced in updated memorandums. b. Secretarial separation authority is normally exercised on a case-by-case basis but may be used for a specific class or category of Soldiers. When used in the latter circumstance, it is announced by special Headquarters Department of the Army (HQDA) directive that may, if appropriate, delegate blanket separation authority to field commanders for the class category of Soldiers concerned. c. Separation under this paragraph may be voluntary or involuntary. 5. This same regulation states in Chapter 14, that the following conditions subject Soldiers to discharge under the provisions of this chapter: a. Minor disciplinary infractions. A pattern of misconduct consisting solely of minor military disciplinary infractions. b. A pattern of misconduct. A pattern of misconduct consisting of one of the following: * Discreditable involvement with civil or military authorities. * Discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army regulations, the civil law, and time-honored customs and traditions of the Army. c. Commission of a serious offense. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual of Courts-Martial. * An absentee returned to military control from a status of absent without leave or desertion may be separated for commission of a serious offense. * Abuse of illegal drugs is serious misconduct. * Relevant facts may mitigate the nature of the offense. Therefore, a single drug abuse offense may be combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation under a or b, above, as appropriate. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170003553 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1