ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  23 July 2019

	DOCKET NUMBER:  AR20170004054


APPLICANT REQUESTS:  the reason for his separation be changed from in lieu of trial by court-martial to disability retirement due to debilitating post-traumatic stress disorder (PTSD)

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* self-authored Summary of Error and Injustice to be Corrected
* Army Discharge Review Board (ADRB) result from 2016
* three letters of support
* ADRB narrative/application from 2011 

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 the reason the ADRB (which upgraded his characterization of service to honorable) did not change the reason for discharge was because they believed his chain of command was aware he was suffering from PTSD, but had determined that he knew the difference between right and wrong.  This reason for not changing the narrative reason for his separation is in complete contradiction to the written statements of his then commanding officer, section sergeant, and his diagnosing physician.  All of this material was available to the ADRB in 2016 when it reviewed his case.     

2.  The applicant provides:

     a.  A two page “Summary of Error and Injustice to be Corrected” in which he describes the errors committed by the ADRB (in case number AR20160008510) with respect to its reliance upon the notion that his chain of command knew of his mental health condition and determined he nevertheless knew right from wrong which rendered the reason for his discharge proper.  He notes:

* the ADRB’s medical officer found he had two in-service mitigating behavioral health diagnoses which could cause rage attacks and impulsive violence

* the ADRB failed to apply “liberal consideration” to the opinion of his civilian doctor that he suffered from PTSD and likely traumatic brain injury (TBI) due to his exposure to a vehicle borne improvised explosive device (VBIED) as required by the Secretary of Defense’s (SECDEF) 3 September 2014 memorandum
* also per SECDEF guidance, due to his PTSD he should have been placed on the Temporary Disability Retired List for six months with a disability rating of fifty percent because he was unfit to perform his duties
* two members of his leadership acknowledge that he was not evaluated by a mental health expert after he was exposed to the VBIED and now believe he was suffering from PTSD and/or TBI at the time of his misconduct and separation
* he was so incapacitated by the VBIED incident and the ensuing PTSD that he went from being the Point gunner on the Task Force Commander’s Personal Security Detail to not being allowed to carry a weapon at all
* the rage incident that led to his discharge occurred moments after he failed his gunner’s exam after having scored expert the previous seven times
* the Board should change his reason for separation from in lieu of court-martial to permanent disability retirement, because he became completely disabled due to his exposure to combat and the resultant PTSD

     b.  The five-page ADRB Case Report and Directive in case number AR20160008510, in which applicant personally appeared before the ADRB in Arlington, Virginia and was given partial relief in the form of an upgrade to an Honorable Discharge.  

     c.  A two-page statement from now Major (MAJ) X___, dated 29 August 2016, who served with applicant from approximately June 2003 to June 2005.  MAJ X___ was his platoon leader for about fifteen months and the company’s executive officer thereafter.  When he first met applicant he was a dedicated and energetic Soldier who got along well with the rest of the guys in the platoon and company.  His optimism and energy remained high after their first deployment and when they returned to Iraq in early 2005 even though they had only been home for nine months.  His personality and disposition took a dramatic turn in spring of 2005, however, when his vehicle was hit by a massive VBIED while out on patrol.  The VBIED detonated very close to his vehicle, but did not destroy it.  When the patrol returned, their vehicle was covered in the human remains of the suicide bomber.  


     d.   A two-page statement from now Staff Sergeant (Retired) (SSG (Ret)) X___, dated 10 September 2016, who served as applicant’s squad leader beginning in 2002.  He got to know applicant very well.  During their first deployment to Iraq, he was an outstanding Soldier.  He was always positive, motivated, and well-liked.  He was one of the most intelligent and level-headed Soldiers in the platoon and served well both during and after their first deployment. 

     e.  A two-page statement from Dr. X___, dated 12 August 2015, the applicant’s primary care physician.  Dr. X___ states that she has known the applicant since 2006 when he was selected for a volunteer position with a non-profit organization she founded which provides free medical care for the homeless through the use of mobile back-pack based teams.  She observed him in many stressful situations over the years and he kept the teams safe and well-organized in hazardous conditions.  She became his primary care physician in August 2015.  When she examined him, she learned about the events of April-May 2005 and his exposure to a VBIED in Iraq.  She also learned that subsequent to the VBIED incident his performance declined culminating in his failure of his gunner’s exam followed by a rage episode that led to his discharge.  She observed substantial evidence of PTSD symptoms and signs in applicant triggered by recalling the events of April-May 2005.  Based on her knowledge of PTSD and TBI, it is her medical opinion that the rage incident in April 2005 was due to the delayed effects of PTSD associated with the VBIED explosion as well as likely TBI secondary to his repeated exposure to explosions as a gunner.  
  
f.  The ADRB narrative related to his 2011 application to the ADRB, in which applicant first laid out the reasons why both his discharge and reason for separation should be changed.  This request was denied 

3.  A review of the applicant’s service record shows:

	a.  He enlisted in the Regular Army on 22 August 2001.

	b.  He accepted nonjudicial punishment on 27 May 2005 for negligently discharging a weapon.  

	c.  Court-martial charges were preferred against the applicant on 2 June 2005 for one specification of disrespect to a superior commissioned officer and two specifications of assault consummated by a battery.    

	d.  On 4 June 2005, after consulting with legal counsel, he voluntarily requested a discharge in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10 in lieu of trial by court-martial and he acknowledged:

* he was guilty of one or more of the charges against him or of lesser included offenses therein which authorize the imposition of a punitive discharge
* maximum punishment
* if his request for discharge was accepted, he may be discharged under other than honorable conditions 
* he may be deprived of many or all Army benefits
* 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

	e.  Consistent with the chain of command recommendations, the separation authority approved the applicant’s request for discharge in lieu of trial by court-martial on 10 June 2005 and directed he be issued an Under Other than Honorable Conditions Discharge and reduced to the lowest enlisted pay grade.

	f.  He was discharged from active duty on 21 July 2005 with an under other than honorable conditions characterization of service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years and 11 months of net active service.  It also shows he was awarded or authorized the:

* Army Achievement Medal
* Valorous Unit Award
* National Defense Service Medal
* Global War on Terrorism Service Medal
* Iraq Campaign Medal
* Army Service Ribbon
* Combat Infantryman Badge

     g.  On 26 September 2016, the applicant personally appeared before the ADRB.  The ADRB determined that his discharge was too harsh and directed his characterization of service be upgraded to honorable.  It found the reason for discharge remained proper and equitable.  A new DD Form 214 reflecting the upgrade was issued on 4 November 2016.  

4.  On 1 May 2017, the Army Review Boards Agency clinical psychologist rendered an advisory opinion in the processing of this case.  She opined:

	Based on a thorough review of available medical records, there is evidence that applicant met full criteria for PTSD and Bipolar Disorder during his military service.  Furthermore, there is evidence based on his 26 September 2016 personal appearance before the ADRB and supportive medical documentation, that applicant’s diagnosis of PTSD mitigated his misconduct which led to an early separation from the Army.  Therefore, it is appropriate that his reason for discharge be considered for a change.  

5.  The advisory opinion was forwarded to the applicant for acknowledgement and/or response.  He did not respond.

6.  By regulation (AR 635-200) Soldiers may seek discharge in lieu of court-martial when facing charges that could result in punishment including a punitive discharge.  Secretarial plenary authority may be used as the reason for separation when no other reason is appropriate.     

7.  By regulation (AR 635-40) the mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  

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, the Board determined that partial relief was warranted.  Based upon the documentary evidence available, the Board determined there was insufficient evidence to change the narrative reason for separation to PTSD.  However, based upon the findings and recommendations of the medical advisory, the Board determined that granting clemency to the applicant to assist the applicant in any future endeavors was appropriate by changing the narrative reason for separation, the separation code and the authority for separation.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	X	X	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
* Narrative reason for separation as “Secretarial Authortiy”
* Separation Code as “JFF”
* Authority for Separation as “AR 635-200”
	 
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, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

	a.  Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination.

	b.  The disability evaluation assessment process involves two distinct stages: the MEB and PEB.  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees.

	c.  The mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

2.  Army Regulation (AR) 635-40 (Personnel Separations—Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, prescribes Army policy and responsibilities for the disability evaluation and disposition of Soldiers who may be unfit to perform their military duties due to physical disability.  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.

	a.  Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service.

	b.  Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits:

		(1)  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training.

		(2)  The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence.

3.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent.

4.  AR 635-200 (Personnel Separations - Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. 

     a.  Paragraph 5-3 “Secretarial plenary authority” states separation under this paragraph is the prerogative of the Secretary of the Army.  Secretarial plenary authority is exercised sparingly and seldom delegated.  Ordinarily it is used when no other provision of this regulation applies.  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.  Chapter 10 of this regulation states 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.  A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the service.  

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.


ABCMR Record of Proceedings (cont)	 AR20170004054


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