IN THE CASE OF: BOARD DATE: 7 May 2020 DOCKET NUMBER: AR20170004854 APPLICANT REQUESTS: an upgrade of his character of service from under honorable conditions (General) to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Rating Decision, dated 24 June 2016 FACTS: 1. The applicant did not file within the three-year period 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 he had a mental health issue in the service and he has a Department of Veterans Affairs disability rating for post-traumatic stress disorder (PTSD) due to combat trauma. He was diagnosed with PTSD in September 2015. He contends, in effect, that his poor judgment and actions, which led to his discharge, could be related to his PTSD. 3. The applicant enlisted in the Regular Army on 25 June 2008. The highest Grade held was specialist (SPC/E-4). He completed foreign service in Iraq from 13 September 2009 to 17 August 2010. 4. The applicant tested positive for hydrocodone (Vicodin) and hydromorphone (Dilaudid) during a random unit urinalysis conducted on 11 July 2012. He received an event oriented counseling for this offense on 1 August 2012. The counseling noted the applicant could be administratively separated for testing positive on a urinalysis and that he would be recommended for enrollment into the Army Substance Abuse Program. 5. He underwent a separation physical on 8 August 2012. On the DD Form 2807-1 (Report of Medical History), in section 17 (Nervous trouble), he indicated that he attempted suicide after his wife left. He received counseling after this incident. His DD Form 2808 (Report of Medical Examination) shows he was found medically qualified for military service. 6. On 9 August 2012, he underwent a mental health evaluation. This evaluation found the applicant was fit for duty, including deployment. Further, he could understand and participate in administrative proceedings, he could appreciate the difference between right and wrong, and he met medical retention requirements (did not qualify for a Medical Evaluation Board (MEB)). a. The applicant also had a negative screening for PTSD and mild traumatic brain injury. These conditions were either not present or, if present, did not meet Army Regulation (AR) 40-501 (Medical Services-Standards of Medical Fitness) criteria for a MEB. b. The applicant was cleared by behavioral health for any administrative action deemed appropriate by the command. 7. The applicant accepted non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on 12 September 2012, for two specifications of the wrongful use of a schedule II control substance (hydrocodone (Vicodin) and hydromorphone (Dilaudid). His punishment included reduction to the lowest grade, forfeiture of pay, extra duty, and restriction. 8. The applicant's commander notified the applicant on 27 September 2012 that he had initiated actions to separate him from service under the provisions of AR 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c(2), by reason of misconduct –abuse of illegal drugs. His commander cited as the specific reason, the applicant’s wrongful use of hydrocodone (Vicodin) and hydromorphone (Dilaudid) between 9 July 2012 and 11 July 2012. 9. On 27 September 2012, the applicant acknowledged receipt of the notification memorandum. He waived this right to counsel and elected to submit a statement on his own behalf. 10. In his sworn statement, the applicant admitting to using Vicodin to ease the pain associated with a chemical burn. He did so after the Motrin he had been prescribed did not alleviate his pain. He had learned from his mistake and felt the Article 15 he received to be sufficient punishment. He was enrolled in an Alcohol Substance Abuse Program and was confident he would never repeated his mistake. He started utilizing his chain of command and he realizes that had he done so earlier, he would not be in this position. He had earned an Expert Infantryman Badge, Army Commendation Medal, and been deployed to Iraq. He wished to continue his service and remain in the military. Attached to his statement is a memorandum for record from the battalion physician's assistant confirming the applicant had been seen at the aid station during the second week of July for a chemical burn, which was treated with Tylenol, ibuprofen, and bacitracin ointment. 11. The separation authority approved the recommended discharge on 12 October 2012 and directed his service be characterized as general, under honorable conditions. 12. The applicant was discharged according to the separation authority's directive on 30 October 2012. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct. His service was characterized as under honorable conditions (general). 13. The applicant provides a copy of his VA Rating Decision, dated 24 June 2016, which shows he was granted a 30 percent disability rating for PTSD. 14. The Army Review Boards Agency's psychologist rendered an advisory opinion on 16 April 2020. She reviewed the available military health and service records, as well as his VA medical records. She determined that: a. There was sufficient documentation to support a behavioral health condition existed at the time of his discharge b. The applicant completed a separation physical and behavioral health evaluation and met medical retention standards at the time of his discharge. c. Secretary of Defense's liberal guidance memorandum, dated 3 September 2014 and Clarifying guidance, dated 25 August 2017, state that PTSD is considered a mitigating factor for substance use. However, at the time of discharge the applicant admitted taking non-prescribed medication due to pain from a chemical burn. 15. The applicant was forwarded a copy of the advisory opinion for comment; however, no response was received by the suspense date. 16. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds. a. 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, Boards 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. b. 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. 17. The Board should consider the applicant's statement, the evidence he provides, his military record, and the medical advisory opinion in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service to include a deployment, documentation of his injury, the frequency and nature of his misconduct, documentation in the separation packet to include his sworn statement and the reason for his separation. The Board considered the applicant’s VA disability rating for PTSD and the review and conclusions of the medical advising official. Based on a preponderance of evidence, the Board determined that liberal consideration applied and that an upgrade of the applicant’s character of service was appropriate. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XXX :XXXX :XX GRANT FULL RELIEF : : : 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 amending the applicant’s DD Form 214 for the period of service ending 30 October 2012 to reflect in item 24 (Character of Service) – “Honorable” vice “Under Honorable Conditions (General).” 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 (AR) 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. Provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. 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. 3. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds. a. 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, Boards 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. b. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170004854 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1