ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 July 2019 DOCKET NUMBER: AR20170004298 APPLICANT REQUESTS: reconsideration of his previous request for an upgrade of his general, under honorable condition discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Secretary of Defense Memorandum, Subject – Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder (PTSD) * Applicant’s Notarized Deposition, dated 22 March 2016 * Department of Veterans Affairs (VA) Form 21-0781 (Statement in Support of Claim for Service Connection for PTSD * Applicant’s Case Summary * ABCMR Case Denial Letter (AR20140009468), dated 2 February 2015 * ABCMR Record or Proceedings (AR20140009468), dated 29 January 2015 * Department of Veterans Affairs (VA) Benefits Rating Decision, dated 10 September 2015 * VA Benefits Rating Decision, dated 30 April 2014 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140009468 on 29 January 2015. 2. The applicant states that the actions that led to his separation were adversely impacted by his inability to cope with his service connected disabilities. Specifically, his diagnosis for PTSD combined with injuries to his back, shoulders, and knees were the source of events that led to his separation from service. Based upon new guidance from the Secretary of Defense, he is submitting new evidence to prove service connected disabilities and how those disabilities justify a discharge upgrade. He submits proof of ratings and diagnosis of service connected disabilities from VA, a personal statement, other medical records, and service records. 3. The applicant provides: a. A memorandum from the Secretary of Defense that provides supplemental guidance directing Military Boards for Correction of Military/Naval Records to fully and carefully review every petition based on PTSD brought by each Veteran. b. An affidavit that chronologically details the applicants military service, including the events that led to his separation and subsequent submission of applications requesting upgrade of his discharge. c. A VA Form 21-0781 to support his claim for service connected PTSD. He provides a description of an incident detailing activities during night convoy operations while deployed in support of Iraqi Freedom. He experienced the demise of fellow Soldiers as a result of an explosion to their vehicle. Because of circumstances beyond their control, he and others were unable to evacuate them from their burning vehicle. He indicates he has nightmares and recurring thoughts of the unfortunate actions that occurred during his deployment to the point of affecting his work and normal flow of life. d. A case summary of his actions that led to his separation, events the applicant presents as cause of his PTSD, and actions he has taken to upgrade his discharge. e. ABCMR’s memorandum and the Board’s Record of Proceedings denying his application for discharge upgrade. f. A VA Benefits Rating Decision dated 10 September 2015, that deems the applicant is service connected for PTSD, rated as 70 percent and subject to compensation from 23 April 2010. 4. The applicant’s service records shows: a. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered the U.S. Navy (USN) on 27 June 2003 and was separated with a general, under honorable conditions discharge on 20 May 2005 based on a pattern of misconduct. He had completed 1 year, 10 months, and 24 days of net active duty service during this period. b. He enlisted in the New Jersey Army National Guard (NJARNG) on 26 September 2006 and he was honorably discharged on 20 February 2007. He had completed 4 months and 25 days of service during this period. c. He enlisted in the Regular Army (RA) on 21 February 2007 for a period of 4 years and 18 weeks. He then reenlisted in the RA on 21 November 2007 for a period of 5 years. d. He served in Iraq from 3 September 2007 to 24 October 2008 in military occupational specialty 92F (Petroleum Supply Specialist). e. On 8 July 2008, he accepted nonjudicial punishment (NJP) for being derelict in the performance of his duties. His punishment consisted, in part, of reduction to private/(E-1). f. On 6 October 2008, the company commander issued the applicant a letter of reprimand for threatening two members of the U.S. Army with bodily harm and death. g. On 26 May 2009, his immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 14 (Misconduct), paragraph 14-12b, based on a pattern of misconduct. The commander based his recommendation on the following: * on 8 July 2008, he received NJP for being derelict in the performance of his duties * on 15 August 2008, he disrespected a noncommissioned officer (NCO) by walking away from him and disobeying an order * on 15 August 2008, he disrespected a commissioned officer by disobeying his order to stand at attention while speaking to him * on 7 November 2008, he disobeyed an order issued by a commissioned officer and also an NCO to produce information * on 12 February 2009, he failed to shave * on 22 April 2009, he disrespected an NCO by walking away and ignoring all instructions h. The applicant acknowledged receipt of the proposed separation notification on 16 June 2009. He was advised by consulting counsel of the basis for the contemplated action to separate him for misconduct under the provisions of paragraph 14-12b of AR 635-200, and its effects, of the rights available to him, and the effect of any action taken by him waiving his rights. He acknowledged and understood: (1) He was entitled to have his case considered by an administrative separation board. (2) He could consult with counsel to consider whether or not to submit a conditional waiver. (3) He could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him and he might be ineligible for many benefits as a Veteran under both federal and state laws. (4) He could apply to the Army Discharge Review Board or the ABCMR for upgrading if he received a discharge certificate/character of service which was less than honorable; however, an act of consideration by either board did not imply that his discharge would be upgraded. (5) He was ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge. (6) He could submit statements in his own behalf. He elected to submit a statement in his own behalf. i. He submitted the following statement in his own behalf: * it shows, in pertinent part, he acknowledged that he had a difficult time adapting to his new unit * he noted that he had been insulted and disrespected by his commander and first sergeant * he acknowledged that he had a discipline problem and stated it was the reason he joined the military "because I know that the military can help fix it" * he wanted to stay in the military and asked to remain in the Army. j. Subsequent to the applicant’s acknowledgment, the immediate commander initiated separation action against him for a pattern of misconduct. The chain of command recommended approval. k. The applicant was deemed mentally responsible for his behavior, can distinguish right from wrong, and possesses sufficient mental capacity to participate in administrative proceedings. l. On 26 June 2009, consistent with the chain of command’s recommendations, the separation authority approved the discharge under provisions of chapter 14-12b, by reason of misconduct - pattern of misconduct and ordered his service be characterized as general, under honorable conditions. m. On 10 July 2009, the applicant was discharged from active duty. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 14-12b of AR 635-200 for pattern of misconduct and was issued a General Discharge Certificate. He completed 2 years, 9 months, and 15 days of active service. It also shows he was awarded or authorized: * United States Navy “E” Ribbon (2nd Award) * National Defense Service Medal * Global War on Terrorism Service Medal * Iraqi Campaign Medal with bronze star * Army Service Ribbon * Overseas Ribbon n. On 8 February 2013, the ADRB determined that the reason for the applicant’s discharge and the character of his service were both proper and equitable. Accordingly, the ADRB denied the relief requested by the applicant. 5. On 29 January 2015, the ABCMR also considered his case but found no error or injustice. The Board denied his request for an upgrade of his discharge. 6. On 8 April 2019, the Army Review Board Agency clinical psychologist rendered an advisory opinion in the processing of this case. She opined: a. A review of information provided by the Board, the Department of Defense electronic medal record (AHLTA), and the Joint Legacy Viewer reveals the applicant’s VA diagnosis of PTSD does not mitigate the basis of separation. b. Based on a thorough review of available records, while the applicant is diagnosed with PTSD by the VA, there is a lack of in-service documentation to support the diagnosis. Likewise, post-service documentation is variable and does not treat complaints with trauma interventions suggesting irrespective of diagnosis providers do not view PTSD as underlying his presentation. Furthermore, the applicant’s pattern of misconduct began before his enlistment in the Army or deployment; he was discharged from the Navy in 2005 with a pattern of misconduct. The applicant’s misconduct is more consistent with an underlying personality organization that permits misbehavior and aggression towards others. 7. On 30 April 2019, the advisory opinion was forwarded to the applicant for review and an opportunity to submit a response. The applicant did not respond. 8. By regulation, action will be taken to separate a soldier for a pattern of misconduct when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory soldier, further effort is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a soldier discharged under AR 635-200, Chapter 14-2b. 9. 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 relatively short term of honorable service completed prior to a pattern of misconduct, as well as the medical advisory’s findings dated 8 April 2019, the Board concluded that the characterization of service received at the time of separation was appropriate. 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. REFERENCES: 1. Army Regulation (AR) 635-200, (Personnel Separations – Enlisted Personnel), in effect at the time, provides for separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any characterization would be clearly in appropriate. b. Paragraph 3-7b (General Discharge) 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. c. Chapter 14, 12b of this regulation provides procedures for separating personnel for a pattern of misconduct. 2. Army Regulation 40-501 (Medical Services - Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation including retirement. Once a determination of physical unfitness is made, the Physical Evaluation Board rates all disabilities using the Veterans Affairs Schedule for Rating Disabilities. 3. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The U.S. Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career, while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. 4. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. ABCMR Record of Proceedings (cont) AR20170004298 6 1