ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF: 

	BOARD DATE:  3 January 2020

	DOCKET NUMBER:  AR20170007189


APPLICANT REQUESTS: 

*	his 6 October 2003 general discharge (GD) for misconduct be voided
*	his 1 August 2003, non-judicial punishment be set aside
*	a disability retirement, effective 6 October 2003 due to post-traumatic stress 
disorder (PTSD) with Combat Related Special Compensation (CRSC)

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	Death Certificate
*	Counsel’s “Supplemental Statement”/legal brief
*	Exhibits A through I

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/former service member submitted the original application for relief.  
Unfortunately, he died prior to the Board’s consideration of the case.  His next of kin 
(NOK), through counsel, has requested processing of the case continue.  

3.  Counsel states that the applicant, the grandson of , suffered from PTSD acquired 
due to combat related stressors while deployed to Afghanistan in 2002-2003.  Fearing 
stigma and negative career repercussions, he, like many others failed to report his 
symptoms and seek treatment.  Army training emphasizing the need to ignore trauma 
and continue with a given mission further supported the FSM’s denial of his injury and 
issues.  His decision-making was further compromised when he suffered a mild 
traumatic brain injury (mTBI) in a hard parachute landing at the 82nd Airborne Division 
shortly after his return from deployment.  The mTBI, itself the result of a traumatic event, 
in combination with the combat-acquired PTSD led the FSM to self-medicate through 
the use of alcohol and drugs.  This led to his separation for misconduct with a GD, when 
he should have been referred into the Physical Disability Evaluation System and 
ultimately honorably retired for disability based on the conditions the Veterans 
Administration (VA) later recognized as having existed during his service.  Recent 
studies and medical advancements with respect to the understanding of PTSD, which 
were not developed until after the applicant’s discharge, should inform the Board’s 
decision.   

4.  The applicant provides:

     a.  An 11-page supplemental statement/legal brief summarized in paragraph 3 above 
and available to the Board in its entirety.

     b.  A second DD Form 149 from the applicant’s NOK (his brother) notifying the Board 
of applicant’s death and requesting the case continue processing.  He notes that his 
brother died of heart failure, chronic liver disease, alcohol/substance dependence and 
PTSD.  He states his brother died at home alone and his family found him in the living 
room with his Army medals, Bronze Star Medal, Senior Aviation Badge, a map of 
Afghanistan, and an 82nd Airborne Division streamer.  They hope the Board will restore 
applicant’s honor.  They rely on the previously submitted supplemental statement/legal 
brief and supporting Exhibits A-I.  

     c.  A Certificate of Death issued by the State of showing that applicant died on 14 
December 2016.  The manner of death is listed as natural.  The cause of death (events 
such as diseases, injuries, or complications that directly caused the death) are listed as 
heart failure, chronic liver disease, alcohol abuse/substance dependence, and PTSD. 

     d.  Exhibit A (seven pages in length), consisting of a DD Form 214 (Certificate of 
Release or Discharge from Active Duty) dated 6 October 2003, a Personnel 
Qualification Record (PQR), dated 28 March 2003, and an Enlisted Record Brief (ERB) 
dated 11 July 2003.    

     e.  Exhibit B (twenty-two pages in length), consisting of administrative documents 
related to applicant’s separation, including his separation physical and miscellaneous 
medical records regarding his hard parachute landing and a motor vehicle accident in 
which he had both alcohol and cocaine in his system.  The purely administrative 
documents will be described in paragraph 5 below.  The medical documents include the 
following relevant pieces of information:

*	DD Form 2808 (Report of Medical Examination), dated 19 August 2003, 
shows the physician performing applicant’s separation physical indicated in 
item 74a that applicant “is qualified for service” and in item 74b gave applicant 
a “1” in each PULHES category (“P” (physical capacity/stamina); “U” (upper 
extremities); “L” (lower extremities), “H” (hearing and ears); “E” (eyes); and ‘S” 
(psychiatric).  A physical profile designation of “1” in all categories means the 
individual is considered to possess a high level of medical fitness and be 
world-wide deployable.
*	DD Form 2807-1 (Report of Medical History), dated 19 August 2003, shows 
applicant answered “yes” to items 15c and g indicating that he had had a head 
injury, memory loss, or amnesia, and suffered a period of unconsciousness or 
concussion.  These issues were connected to an airborne jump.  He also 
answered “yes” to item 17e indicating that he had received counseling of some 
type.  This entry was noted to relate to his current participation in the Army 
Substance Abuse Program (ASAP).
*	DA Form 4700 (Medical Record—Supplemental Medical Data), dated 21 June 
200, noting that applicant was admitted subsequent to a motor vehicle crash  
and had tested positive for alcohol and cocaine.  He was also “alert to person” 
and was “talkative but confused.” 
*	MEDCOM Form 689-R (Medical Record—Patient Activities Flowsheet), dated 
22 June 2003, noting that applicant continued to be “confused.”  The form 
again references the presence of cocaine in applicant’s system and indicates 
a blood alcohol result higher than “314.”
*	DD Form 2770 (Abbreviated Medical Record), showing applicant was 
transferred from Cape Fear Valley Medical Center and admitted to Womack 
Army Medical Center after a motor vehicle accident on 21 June 2003 and was 
discharged on 22 June 2003 in stable condition.  The form notes that his 
command is aware of his condition and that he has decided to enroll in ASAP 
after his discharge from the hospital. 
*	SF 600 (Chronological Record of Medical Care), dated 19 August 2003, 
completed as part of applicant’s separation physical in which the examining 
physician notes that applicant has “0 current complaints other than mild 
chronic joint pain.” 
*	SF 600, dated 2 April 2003, showing that applicant presented for medical 
treatment with a constant headache after having hit his head while doing a 
parachute landing fall three days prior.  He stated he remembered packing his 
chute, but nothing else until he was riding on the bus.  He did not know exactly 
where he hit his head.  He was taking aspirin in the morning for headache, 
dizziness, and nausea after the initial incident, but had taken nothing since.  
He stated he hit his head in the frontal region of his skull.  His pain was the 
greatest in the morning and subsided as the day went on.  

     f.  Exhibit C (four pages in length), consisting of a DA Form 2627 (Record of 
Proceedings under Article 15, UCMJ), dated 1 August 2003, and related report of 
investigation.  This document will be described more fully in paragraph 5 below. 

     g.  Exhibit D (nine pages in length), consisting of a General Officer Memorandum of 
Reprimand (GOMOR), dated 16 August 2000, and associated paperwork.  This 
document will be described more fully in paragraph 5 below. 

     h.  Exhibit E (twenty-eight pages in length), consisting of a series of evaluations as 
follows:  

*	DA Form 1059 (Service School Evaluation Report), dated 17 November 1993, 
showing applicant, then in the rank/grade of specialist (SPC)/E-4, achieved 
course standards at the Primary Leadership Development Course.
*	DA Form 2166-7 (NCO Evaluation Report), dated 24 March 1995, covering the 
period March 1994 thru February 1995, and showing applicant, then in the 
rank/grade of sergeant (SGT)/E-5, was rated “among the best” and received 
“1s” in “overall performance” and “overall potential” from his senior rater while 
serving as a “Flight Operations Specialist.”
*	A memorandum for record from the U.S. Army Enlisted Records and 
Evaluation Center, dated 25 April 2000, directing that applicant’s evaluation for 
the period March 1995 thru November 1995 be removed and declaring that 
period nonrated.
*	DA Form 2166-7, dated 1 November 1996, covering the period December 
1995 thru September 1996, and showing applicant, then in the rank of SGT, 
was rated “among the best” and received “1s” in “overall performance” and 
“overall potential” from his senior rater while serving as “Flight Operations 
NCO.”
*	DA Form 2166-7, dated 1 May 1997, covering the period October 1996 thru 
April 1997, and showing applicant, then in the rank of SGT, was rated “fully 
capable” and received a “3” in “overall performance” and a “2” in “overall 
potential” from his senior rater while serving as “Flight Operations NCO.”
*	DA Form 2166-7, dated 20 May 1998, covering the period May 1997 thru April 
1998, and showing applicant, then in the rank of SGT, was rated “among the 
best” and received “1s” in “overall performance” and “overall potential” from his 
senior rater while serving as “Operation NCO.”
*	DA Form 2166-7, dated 4 November 1998, covering the period May 1998 thru 
September 1998, and showing applicant, then in the rank of SGT, was rated 
“among the best” and received “1s” in “overall performance” and “overall 
potential” from his senior rater while serving as “Operation NCO/Squad 
Leader.”
*	DA Form 1059, dated 12 March 1999, showing applicant, then in the rank of 
SGT, achieved course standards at the Aviation Operations Specialist, Basic 
Noncommissioned Officers Course.  He received a “superior” mark for his 
contribution to group work.    
*	DA Form 2166-7, dated 4 November 1999, covering the period October 1998 
thru September 1999, and showing applicant, then in the rank/grade of staff 
sergeant (SSG)/E-6, was rated among the best and received “1s” in “overall 
performance” and “overall potential” from his senior rater while serving as 
“Assistant Operations SGT/Platoon Sergeant.”  The report notes that he was 
selected over more senior NCOs to assume additional duties as platoon 
sergeant.  The senior rater also recommended early promotion to sergeant 
first class, stated applicant was one of the top two SSGs he had ever worked 
with, and regarded him as a future Command Sergeant Major. 
*	DA 1059, dated 10 November 1999, showing applicant, then in the rank of 
SSG, achieved course standards at the USA Battle Staff NCO Course.  He 
received a “superior” mark for his contribution to group work.
*	DA Form 2166-7, dated 21 September 2000, covering the period October 
1999 thru August 2000, and showing applicant, then in the rank of SSG, was 
rated “marginal” and received a “4” in “overall performance” and a “3” in 
“overall potential” from his senior rater while serving as “S-3 Assistant Aviation 
Operations Sergeant.”  The report cites to his involvement in two alcohol 
related off post incidents in a three week period.
*	DA Form 2166-7, dated 30 May 2001, covering the period September 2000 
thru April 2001, and showing applicant, then in the rank of SSG, was rated 
“among the best” and received “1s” in “overall performance” and “overall 
potential” from his senior rater while serving as “Battalion S-3 Operations 
Assistant NCOIC.”
*	DA Form 2166-7, dated 27 July 2001, covering the period May 2001 thru July 
2001, and showing applicant, then in the rank of SSG, was rated “among the 
best” and received “1s” in “overall performance” and “overall potential” from his 
senior rater while serving as the “Battalion Operations Sergeant.” 
*	DA Form 2166-8 (NCO Evaluation Report), dated 9 August 2002, covering the 
period August 2001 thru June 2002, and showing applicant, then in the rank of 
SSG, was rated “fully capable” and received “2s” in “overall performance” and 
“overall potential” from his senior rater while serving as “Assistant Aviation 
Operations Sergeant.”
*	DA Form 2166-8, dated 10 April 2003, covering the period July 2002 thru 
March 2003, and showing applicant, then in the rank of SSG, was rated 
“among the best” and received “1s” in “overall performance” and “overall 
potential” from his senior rater while serving as “Assistant Aviation Operations 
Sergeant.”  This evaluation covers the time during which applicant was 
deployed to Afghanistan and notes he was “personally selected over senior 
Staff Sergeants to deploy to OEF II because of his knowledge and skills.”
*	DA Form 2166-8, completed and signed by all rating officials but undated, 
covering the period April 2003 thru August 2003, and showing applicant, then 
in the rank of SGT, was relieved from his position as “Assistant Aviation 
Operations Sergeant” due to having “tested positive on a urinalysis.”  He was 
rated as “marginal” and received a “3” in “overall performance” and a “5” in 
“overall potential” from his senior rater.  (Though provided by applicant’s 
counsel for the Board’s consideration, this document is not posted to 
applicant’s file in the interactive Personnel Electronic Records Management 
System (iPERMS)).

     i.  Exhibit F (fifteen pages in length), consisting of numerous awards and 
achievements as follows:

*	A Bronze Star Medal, for the period 6 August 2002 to 10 December 2002, 
awarded to for applicant for his performance of duty in Afghanistan.
*	An Army Commendation Medal (ARCOM), for the period 23 April 1991 to 18 
April 1993, awarded to applicant for his performance of duty as a SPC while 
stationed in Germany.
*	Orders 110-29, dated 8 November 1993, awarding applicant an Army Good 
Conduct Medal (AGCM) for the period 6 November 1990 to 5 November 
1993.
*	Orders 056-20, dated 25 February 1994, capturing applicant’s promotion to 
SGT, effective 1 March 1994. 
*	An Army Achievement Medal (AAM), for applicant’s performance of duty 
during two mass casualty events on 10 June 1994.
*	Orders 330-119, dated 25 November 1996, awarding applicant a second 
AGCM for the period 6 November 1993 to 5 November 1996.
*	 An ARCOM, for the period 7 May 1993 to 9 May 1997, awarded to applicant 
for his performance of duty while stationed at Fort Irwin, California.
*	Orders 102-407, dated 12 April 1999, capturing applicant’s promotion to SSG 
effective 1 May 1999.
*	An ARCOM, for the period 1 October 1999 to 31 December 1999, awarded to 
applicant for his performance of duty while stationed at Fort Wainwright, 
Alaska.
*	Orders 012-4, dated 12 January 2000, awarding applicant a third AGCM for 
the period 6 November 1996 to 5 November 1999.
*	Orders 88-1, dated 29 March 2001, awarding applicant the Senior Aviation 
Badge for the period 13 March 1991 to 12 March 2001.
*	An AAM, for the period 14 November 2001 to 15 November 2001, for his 
performance of duty during Native American Indian Heritage Month 
Presentations, while stationed at Fort Bragg, North Carolina.
*	A “Membership Certificate” in the 82nd Airborne Division Association, dated 
12 July 2002.
*	A “Certificate of Appreciation” from the US Army Special Operations 
Command, Fort Bragg, North Carolina, presented in recognition of applicant’s 
15 November 2001 support to the command’s Native-American Ethic 
Observance.

     j.  Exhibit G (six pages in length), consisting of two letters as follows:

*	An undated letter from applicant’s section supervisor to applicant’s parents 
informing them of applicant’s contributions to the deployment, describing 
those contributions, and thanking them for their support.  The letter included a 
two-page history of the unit.
*	A letter, dated 3 July 2011, from applicant’s father to the individual who 
ultimately became the attorney of record in this case.  The letter asked the 
attorney to review his son’s case.  It also referenced a 12 July 2007 
conversation between applicant’s father and the attorney and outlines some 
of the issues applicant encountered adjusting to civilian life subsequent to his 
discharge.  Applicant’s father also stated he believes his son may have been 
treated unfairly and that the Army should have assisted him in treating 
whatever illness he had.  The letter included a one-page article regarding 
applicant’s father’s World War II service as a Navajo Code Talker.

     k.  Exhibit H (ninety-two pages in length), consisting of miscellaneous medical 
records available to the Board in their entirety and summarized as follows:

*	“Progress Notes”, dated 22 April 2009, capturing a telephone call from 
applicant to a clinical nurse specialist in psychiatry in which he stated “I’m on 
a rampage—I knocked out two of those Vietnamese guys at the bus stop, 
they were triggering me. . . .”  The note also stated applicant had alcohol and 
cocaine dependence possibly in early remission and PTSD.
*	“Progress Notes”, dated 14 January 2010, in which applicant reported he 
needed help for alcohol abuse and PTSD.  The note also referenced 
applicant as having “severe depression.”
*	“Progress Notes”, dated 6 January 2009, in which applicant expressed a 
desire to go into a PTSD program and had been having flashbacks and 
worsening dreams since stopping some of his medications.  The note also 
indicated applicant self-medicated to forget.
*	“Progress Notes”, printed on 23 September 2008, spanning multiple pages in 
which applicant is described as having grown up in a regimented family with 
the expectation that he would serve and excel in the military.  It also noted 
that he had been suppressing the horrors of war and was unable to adapt to 
civilian life.  He is quoted as saying “I first got out in October 2003 and was 
denying that I had problems.  But, I do know now I have PTSD related to my 
service in Afghanistan.”  His health care provider noted “[t[he constellation of 
symptoms associated with PTSD have conspired to significantly detract from 
this veterans overall quality of life.”  His prognosis was “guarded.”  With 
respect to his military history, applicant stated that he loved his time in the 
military and misses it.  He feels angry he was forced out due to his DWI, 
especially in the context of his family’s contribution to the military and the 
country.  He stated he did not have any disciplinary action for more than ten 
years, then went to combat in Afghanistan, got a DWI at Fort Bragg, and was 
put out.  Past emergency room visits included three psychiatric admissions.
*	“Progress Notes”, dated 4 April 2008, reflecting applicant presented for a 
PTSD Mental Health Assessment with severe symptoms of PTSD, marked by 
paranoid ideation, delusional thinking, sleep problems, alcohol dependence, 
and unstable relationships.
*	“Discharge Summary” related to an ER visit in May 2008, in which applicant 
presented after having been found to by a bus stop with a bottle of vodka and 
a pile of vomit. 
*	“Progress Notes”, dated 1 December 2007, capturing an ER visit triggered by 
a domestic incident in which applicant punched his arm through a window and 
barricaded himself in the house when police arrived before eventually exiting 
voluntarily.
*	“Discharge Summary”, dated 13 April 2006, and reflecting diagnoses of 
alcohol abuse/dependence, cocaine abuse/dependence, and 
PTSD/Depressive episode.
*	“Discharge Summary”, regarding a March 2006 hospital admission in which 
applicant expressed homicidal ideations towards his brother and father as 
well as suicidal ideations.

     l.    Exhibit I (42-pages in length), consisting of documents related to applicant’s 
disability compensation award through the VA available to the Board in their entirety 
and summarized as follows:

*	A VA Rating Decision, dated 11 February 2008, awarding applicant service 
connection for tinnitus (residual of concussion), deferring decision on an ankle 
issue and PTSD, and denying service connection for sixteen other conditions. 
*	A VA Form 21-4138 “Statement in Support of Claim”, submitted on 24 March 
2008, providing additional information regarding applicant’s mission and 
experiences while deployed to Afghanistan and his development of PTSD.
*	Statements regarding two stressful incidents applicant was involved in while 
deployed.  The first concerned a young Soldier who suffered a bullet wound 
that entered the back of his neck just below the Kevlar and exited the 
temporal region of his face leaving the tissue looking like mutilated raw steak.  
The second concerned a mission that required him to verify the contents of a 
body bag containing the rotting remains of a young Afghani and trying to load 
it by himself until a Special Force Soldier finally helped, because others would 
not. 
*	A “PTSD Stressor Statement”, undated, from applicant’s father describing his 
son both before and after his deployment and noting what he believed to be 
significant PTSD indicators.  He also faults the Army for failing to provide 
medical assistance, counseling, and further follow-up health care. 
*	A “PTSD Stressor Statement”, undated, from applicant’s mother echoing the 
statement of her husband and adding that with her experience as a registered 
nurse, she knew her son needed immediate support to overcome his 
traumatic experiences.  Instead the Army turned its back on him.  She also 
noted that her home had been turned into a combat operations center with 
windows covered by blankets or sheets due to her son’s concern that 
someone might be looking into their home.  Instead of sleeping in his 
bedroom, he slept in the garage, because he felt safer and had his survival 
weapons with him.  
*	A VA Rating Decision, dated 5 June 2008, granting service connection for 
PTSD with alcohol dependence effective 10 October 2007, deferring decision 
on individual unemployability, and denying service connection for depression 
and for residuals of a right fibula fracture.
*	A VA Decision Review Officer Decision, dated 4 September 2009, granting 
individual unemployability effective 24 March 2008.  The decision was based 
on applicant’s PTSD, ratable at seventy percent (70%), which the VA 
examiner believed rendered him unemployable.  The evaluation was 
considered permanent, because his condition was “reasonably certain” to 
continue through his lifetime.  

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

     a.  He enlisted in the United States Army Reserve on 28 April 1990 and in the 
Regular Army (RA) on 6 November 1990.  His DD Form 1966 (Record of Military 
Processing—Armed Forces of the United States), dated 6 November 1990, and signed 
by applicant reflects numerous arrests.  The arrests included various traffic/moving 
violations as well as three DWIs one of which resulted in conviction.  He was also 
arrested for attempted murder approximately two months before his entry into the RA, 
though the charge was dismissed.  

     b.  His promotion history is as follows:

*	Private/E-1, 6 November 1990
*	Private/E-2, 6 May 1991
*	Private First Class/E-3, 1 September 1991
*	SPC/E-4, 1 October 1992
*	SGT/E-5, 1 March 1994
*	SSG/E-6, 1 May 1999 

     c.  On 16 August 2000, he received a GOMOR, which was directed for filing in his 
Official Military Personnel File on 27 September 2000.  The GOMOR reflects that 
applicant was apprehended for driving while intoxicated (DWI) at Fort Wainwright, 
Alaska on 7 August 2000.  His breath alcohol content was .204 percent.  Applicant 
submitted a rebuttal acknowledging his poor judgment and seeking local filing of the 
GOMOR.
     
     d.  On 1 August 2003, he received non-judicial punishment (NJP) for the wrongful 
use of cocaine.  He did not demand trial by court-martial, requested an open hearing, a 
person to speak on his behalf, and presented matters in defense, mitigation, and/or 
extenuation in person.  He was found guilty.  His punishment included reduction to 
SGT/E-5, forfeiture of five hundred dollars ($500.00) per month for two months, and 
thirty days of extra duty.  He did not appeal.  

     e.  Subsequent to the imposition of NJP as described in paragraph 5c above, 
applicant’s company commander initiated action to separate him under the provisions of 
Army Regulation 635-200 (Personnel Separations—Enlisted Personnel), Chapter 14-
12c, Commission of a Serious Offense.  The memorandum informed applicant that the 
commander was seeking a GD, though an HD or an under other than honorable 
conditions discharge was also authorized, that applicant had the right to consult with 
and be represented by an attorney, that he could request a hearing before an 
administrative separation board, that he could waive his rights in writing, and that he 
could conditionally waive his right to a board.

     f.  On 12 August 2003, applicant acknowledged receipt of the commander’s 
notification memorandum and his right to submit statements on his own behalf.  

     g.   There is no evidence available regarding any decisions applicant made to either 
exercise or decline to exercise in the rights available to him in conjunction with the 
separation action.

     h.  The approval authority, consistent with the company commander’s 
recommendation, directed applicant be separated in accordance with AR 635-200, 
Chapter 14, paragraph 14-12c and issued a GD. 

     i.  He was discharged on 6 October 2003.  His DD Form 214 shows in:

*	item 4a (Grade, Rate, or Rank), SGT
*	item 4b (Pay Grade), E-5
*	item 12a (Date Entered AD this Period), Year 1990, Month 11, Day 06
*	item 12b (Separation Date this Period), Year 2003, Month 10, Day 06
*	item 12c (Net Active Service this Period), Years 12, Months 11, Days 1
*	item 12f (Foreign Service), Years 6, Months 7, Days 05
*	item 12h (Effective Date of Pay Grade), Year 2003, Month 08, Day 01
*	item 13 (Decorations, Medals, Badges), Bronze Star Medal, Army 
Commendation Medal (4th Award), Army Achievement Medal (3rd Award), 
Army Good Conduct Medal (4th Award), National Defense Service Medal 
(2nd Award), Noncommissioned Officer’s Professional Development Ribbon 
with Number 2, Army Service Ribbon, Overseas Service Ribbon (2nd Award), 
Expert Marksmanship Qualification Badge with Rifle Bar, Senior Army Aviator 
Badge, Parachutist Badge, Driver and Mechanic Badge with Operator’s Bar
*	item 18 (Remarks), includes the note “immediate reenlistments this period—
19901106-19961204, 19961205-19991229, 19991230-20010425” 
*	item 23 (Type of Separation), Discharge
*	item 24 (Character of Service), Under Honorable Conditions (General)
*	item 25 (Separation Authority), AR 635-200, para 14-12C
*	item 28 (Narrative Reason for Separation), Misconduct  

6.  On 2 August 2017, the Army Review Boards Agency staff psychiatrist rendered an 
advisory opinion in this case.  After a thorough review of the available documentation, 
she opined:

     a.  The applicant entered the Army on 6 November 1990 in the MOS 93P-Aviation 
Operation Specialist. According to his VA records, while on active duty, he served a tour 
of duty in Afghanistan (August 2002-June 2003). On 6 October 2003, he was separated 
from the Army with an Under Honorable Conditions (General) discharge IAW AR 635-
200, Paragraph 14-12C. His misconduct consisted of the wrongful use of cocaine. He is 
currently applying to the ABCMR contending he developed PTSD while on active duty 
and that this PTSD was the cause of his misconduct. He is requesting discharge 
upgrade, return of his grade to E-6, medical retirement and award of retired back pay as 
Combat Related Special Compensation. 

     b.  The Army Review Boards Agency Psychiatrist was asked to review the 
applicant’s request.  Documentation reviewed included the applicant’s ABCMR 
application, a legal brief summarizing his case, applicant provided medical 
documentation, military personnel and medical records and the electronic VA medical 
record (JLV). The military electronic medical record (AHLTA) was not reviewed as it was 
not in use during the applicant’s time in service.

     c.  In his legal brief, the applicant’s attorney, JW, Esquire, contends that the 
applicant developed PTSD while on active duty but told no one about his condition. He 
states that “Due to overwhelming professional stigma and personal guilt and shame, 
SSG Begay, from 2003 in the Army and at pre-separation mental health exam, and 
thereafter through 2006 refused all mental health care and repeatedly denied all 
psychiatric symptoms; from 2004 to 2006, repeated police arrests for DWI and domestic 
violence and suicidal/homicidal actions; in 2006 twice involuntarily hospitalized by family 
for alcohol/drug abuse and PTSD evaluation and treatment; 2006 VA diagnosed 
suffering from history of PTSD...”

     d.  The applicant-provided VA medical documentation and electronic VA medical 
record were reviewed. This documentation indicates that the applicant is rated as 70% 
service connected for the diagnosis of PTSD and 10% service connected for tinnitus 
(residual of concussion). His VA Problem List contains the following Behavioral Health 
diagnoses: PTSD, chronic; Alcohol Dependence; Alcohol Abuse; Polysubstance 
Dependence.  Additionally, the applicant has been found to be 100% unemployable by 
the VA.

     e.  Review of the military medical records provided by the applicant indicates:

 	(1) a DD Form SF 600, “Chronological Record of Medical Care”, dated 2 April 
2003, which indicates the applicant “has had a constant headache since hitting his head 
while doing a PLF [Parachute Landing Fall]”.  The SF 600 states, “Patient states he 
remembers packing his shoot [sic] but nothing else”. According to this note, the 
applicant complained of dizziness and headache and reported he hit his head in the 
frontal region. The diagnosis was given as “Cephalgia, post concussive”.

      (2) a Form 4100 dated 21 June 2003 which documents the following: “+ETOH,
+ Cocaine. Patient alert to person, talkative but confused”.

      (3) a Med Com Form 689 dated 22 June 2003 which indicates that the 
applicant’s alcohol level, taken after a motor vehicle accident, was “314”.

     f.  Review of the applicant’s military records indicates the following:

         (1) The applicant’s Enlistment Contract, dated 28 April 1990, indicates that the 
applicant was charged with Driving While Intoxicated (DWI) several times prior to 
entering the Army.  He was charged with DWI on 7 January 1983 In Phoenix, Arizona 
and was fined $200.00.  He was also charged with DWI in Gallup, New Mexico on 27 
July 1985 and again on 15 September 1987.  Both of these charges were later 
dismissed.

          (2)  A General Officer Memorandum of Reprimand, dated 16 August 2000, 
indicates that the applicant was reprimanded for driving while intoxicated on 7 August 
2000.  Breathalyzer test indicated a breath alcohol content of 0.204%. The GOMOR 
was signed by JL, MG, Commanding.

      (3) An accompanying GOMOR Filing Recommendation states “Strong NCO at 
work”.

     g.  d. Multiple NCO Evaluation Reports which indicate the following ratings:

      (1) Mar 1994-Feb 1995: Among the Best
      (2) Dec 1995-Sep 1996: Among the Best
      (3) Oct 1996-Apr 1997: Fully Capable
      (4) May 1997-Apr 1998: Among the Best
      (5) May 1998-Sep 1998: Among the Best
      (6) Oct 1998-Sep 1999: Among the Best
      (7) Feb 1999-Mar 1999-Service School: Achieved Course Standards
(8) Oct 1999-Aug 2000: Marginal (applicant received his DWI during this time 
frame)
      (9) Sep 2000-Apr 2001: Among the Best
      (10) May 2001-Aug 2001: Among the Best
      (11) Sep 2001-June2002: Fully Capable
      (12) July 2002-Mar 2003: Among the Best
      (13) April 2003-August 2003: Marginal (comments made on this NCO ER 
include: Leadership-needs much improvement; demonstrated poor judgement and poor 
leadership qualities).

     h.  Report of Medical Examination (DD Form 2808) dated 19 August 2003 indicates 
that the applicant had a psychiatric profile of S1 (no psychiatric disability).

     i.  Report of Medical History (DD Form 2807-1), dated 19 August 2003, indicates the 
following:

(1)	The applicant answered affirmatively to the query: “Have you ever had or do
you now have: Received counseling of any type?”.
(2) The applicant answered negatively to the queries: “Have you ever had or do 
you now have: Nervous trouble of any sort?, Loss of memory?, Neurological 
symptoms?, Depression/Excessive Worry ?, Been evaluated for a mental 
condition ?, Attempted Suicide ?, Used Illegal/Prescription Drugs?”
(3) A note written by the examining physician indicates that the applicant’s 
aforementioned history of counseling consisted of attending Army Substance 
Abuse Program (ASAP) counseling.

i.	There is no indication in the military records that the applicant failed to meet 
military medical retention standards IAW AR 40-501.  His psychiatric profile at the time 
of separation from the Army was S1 (no psychiatric disability).

j.	The applicant’s medical records contain no documentation of any PTSD
symptoms.  There is no documentation of any inpatient psychiatric hospitalizations. 
There is no indication in his medical records of any unfitting medical or psychiatric 
condition which would warrant a MEB.

k.	The applicant has been diagnosed with PTSD by the VA. The applicant’s military 
records, however, are void of documentation of any symptoms of PTSD. The 2014 
Secretary of Defense Memorandum-“Supplemental Guidance to Military Boards for 
Correction of Military/Naval Records Considering Discharge Upgrade Requests by 
Veterans Claiming Post-Traumatic Stress Disorder” states “Special consideration will be 
given to Department of Veteran Affairs determinations which document PTSD or PTSD- 
related conditions connected to military service”.  Therefore, in accordance with the 
aforementioned guidance, the applicant’s VA diagnosis of combat related PTSD 
provides sufficient evidence that the applicant more likely than not suffered from PTSD 
while on active duty.  Because PTSD is associated with the use of illicit substances for 
self medication of symptoms, there is more likely than not a nexus between the 
applicant’s PTSD and the offense of wrongfully using cocaine.  As such, PTSD is 
considered mitigating for this misconduct.

     l.  The applicant has also requested his record be considered for military medical 
retirement.  The VA has found his PTSD to be 70% service connected.  It is important to 
understand that the VA finding of service connection does not automatically result in a 
military medical retirement.  The VA operates under different rules, laws and regulations 
when assigning disability percentages than the Department of Defense (DOD). In 
essence, the VA will compensate for all disabilities felt to be unsuiting.  The Department 
of Defense, however, does not compensate for unsuiting conditions.  It only 
compensates for unfitting conditions.  Based on the available military records, there is 
no indication that the applicant suffered from an unfitting psychiatric condition while 
serving on active duty.  Review of the record indicates that the applicant had no 
inpatient psychiatric hospitalizations or duty limiting profiles and reached no Medical 
Retention Decision Points (MRDP) while on active duty. His NCO Evaluation Reports 
indicate that, for the majority of his evaluations, he received ratings of “Among the 
Best”, indicating a pattern of overall good military functioning.  While on active duty, the 
applicant met military psychiatric retention standards.  Therefore, based on the currently 
available documentation, there is insufficient evidence to warrant a referral of the 
applicant’s record to IDES for consideration of medical retirement.

m.	In regard to the questions outlined in paragraph #2 above, (a) The applicant’s 
military medical records DO support a PTSD diagnosis at the time of discharge; (b) The 
applicant’s medical records indicate that the applicant MET medical retention standards
IAW AR 40-501 and separation through military medical channels WAS NOT indicated;
(c) The applicant’s diagnosis of PTSD IS a mitigating factor in his misconduct.

7.  On 14 September 2007, applicant’s counsel replied to the advisory opinion 
discussed immediately above.  Available to the Board in its entirety, his argument is 
summarized as follows:

     a.  The advisory opinion’s contention that PTSD served only to “mitigate” the 
misconduct of drug abuse and GD falls short.  As in his original brief, he argued that 
because a majority of Soldiers do not report symptoms or seek mental health treatment 
fearing career stigma and are trained to “fall back on their skills” one must look for 
indirect evidence of PTSD.  The advisory opinion essentially uses a built-in “kill switch” 
making it impossible to pursue PTSD disability claims because the lack of direct medical 
evidence and poor performance evaluations proves PTSD had no impact on duty fitness 
or medical retention standards.  This is an unenlightened and antiquated view that does 
not recognize that the majority of Soldiers never reported PTSD symptoms thus 
allowing a crisis to occur.  There is sufficient indirect documentation to justify referral 
into IDES.

     b.  Additionally, applicant’s good service prior to March 2003 is not relevant and does 
not disprove his PTSD claim.  The NJP for cocaine use and ancillary adverse personnel 
actions indirectly document the severity of his PTSD symptoms.  The advisory fails to 
take into account recent studies showing mTBI makes a brain vulnerable and can cause 
and/or aggravate PTSD.  After the April 2003 mTBI incident, applicant’s behavior 
changed and his PTSD symptoms became severe.  This led to desperate attempts to 
self-medicate and reckless behavior.  Recent studies show that PTSD symptom severity 
and functional impairment parallels severity in substance abuse and criminal behavior.               

8.  There is no evidence applicant applied to the Army Discharge Review Board for 
consideration of an upgrade of his discharge as a stand-alone issue. 

9.  Army Regulation 27-10, the punishment or any part or amount, whether executed or 
unexecuted may be set aside and any rights, privileges or property affected by the 
punishment set aside are restored.  Some or all of the findings may also be set aside in 
a particular case.  

10.  Army Regulation 635-200, action may be taken to separate a member for 
misconduct such as pattern of misconduct, civil conviction, and commission of a serious 
offense.  A discharge under other than honorable conditions is normally appropriate for 
a Soldier discharged under this chapter.

11.  Army Regulation 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.  

12.  In reaching its determination, the Board can consider the applicant’s petition and 
his service record in accordance with the published guidance regarding PTSD, equity, 
injustice, and clemency determinations.  

BOARD DISCUSSION:

1.  After reviewing the application and all supporting documents, the Board found that 
partial relief was warranted. The Board carefully considered the applicants request, 
counsel’s supporting documents, evidence in the records, a medical advisory opinion 
and published DoD guidance for liberal consideration of discharge upgrade requests.  
The Board considered the applicant's statement, counsel’s statement, the applicant’s 
record of service, the frequency and nature of his misconduct, and the reason for his 
separation. The Board considered the medical records, documents provided by the 
applicant and counsel, and the review and conclusions of the advising official.  The 
Board concurred with the medical advisory opinion finding sufficient evidence of in-
service mitigating factors to overcome the misconduct to warrant an upgrade to his 
characterization of service.

2.  The Board found insufficient evidence to warrant setting aside his non-judicial 
punishment or warranting a disability retirement.  


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:

1.  The Board determined the evidence presented is sufficient to warrant a 
recommendation for partial relief.  As a result, the Board recommends that all 
Department of the Army records of the individual concerned be corrected by amending 
his DD Form 214 to show he received an honorable discharge.

2.  The Board further determined that the evidence presented is insufficient to warrant a 
portion of the requested relief.  As a result, the Board recommends denial of so much of 
the application that pertains to any relief in excess of that described above.  


	  
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, USC, section 1552(b), provides that applications for correction of military 
records must be filed within three years after discovery of the alleged error or injustice.  
This provision of law also allows the Army Board for Correction of Military Records 
(ABCMR) to excuse an applicant's failure to timely file within the three-year statute of 
limitations if the ABCMR determines it would be in the interest of justice to do so.
2.  Army Regulation 15-185, (Boards, Commissions, and Committees—Army Board for 
Correction of Military Records), provides Department of the Army policy, criteria, and 
administrative instructions regarding an applicant’s request for correction of a military 
record.  Paragraph 2-9 states 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.  

3.  Army Regulation 635-8 (Separations Processing and Documents), currently in effect, 
provides for the preparation and distribution of the DD Form 214.  It states for item 18 
(Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 
214 and are separated with any characterization of service except “Honorable”, enter 
“Continuous Honorable Active Service from” (first day of service for which DD Form 214 
was not issued) until (date before commencement of current enlistment).
4.  Army Regulation 27-10 (Legal Services—Military Justice), currently in effect, 
implements policies and procedures pertaining to the administration of military justice 
within the Army.  Paragraph 3-28, the commander who imposed non-judicial 
punishment, a successor-in0command, or a superior authority to set aside all 
punishment imposed upon an individual.  In addition, some or all of the findings in a 
particular case may be set aside.  The basis for any set-aside action is a determination 
that, under all the circumstances of the case, the imposition of non-judicial punishment 
resulted in a clear injustice. 

5.  Army Regulation 635-200 (Personnel Separations—Enlisted Personnel), in effect at 
the time, prescribes the policies and procedures related to the separation of enlisted 
Soldiers. Chapter 14-12c states that a Soldier is subject to discharge for the 
commission of a serious military of 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 for Courts-Martial.  Abuse of illegal 
drugs is serious misconduct.  A discharge under other than honorable conditions is 
normally appropriate for a Soldier discharged under Chapter 14.  However, the 
separation authority may direct a general discharge if such discharge is merited by the 
Soldier’s overall record.

6.  Army Regulation 635-200 (Personnel Separations—Active Duty Enlisted 
Administrative Separations), currently in effect, sets forth the basic authority for the 
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 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.  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 member 
whose military record is satisfactory but not sufficiently meritorious to warrant an 
honorable discharge.

7.  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.

8.  Army Regulation 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.

9.  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.

10.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award 
compensation for disabilities that were incurred in or aggravated by active military 
service.  However, an award of a higher VA rating does not establish error or injustice 
on the part of the Army.  The Army rates only conditions determined to be physically 
unfitting at the time of discharge which disqualify the Soldier from further military 
service.  The VA does not have the authority or responsibility for determining physical 
fitness for military service.  The VA awards disability ratings to veterans for service-
connected conditions, including those conditions detected after discharge, to 
compensate the individual for loss of civilian employability.  These two government 
agencies operate under different policies.  Unlike the Army, the VA can evaluate a 
veteran throughout his or her lifetime, adjusting the percentage of disability based upon 
that agency's examinations and findings.

11.  Title 10, U.S. Code, section 1413a provides for Combat-Related Special 
Compensation.  It directs the Secretary concerned shall pay to each eligible combat-
related disabled uniformed services retiree who elects benefits under this section a 
monthly amount for the combat-related disability of the retiree.  A separate application 
for CRSC is required. 

12.  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; sexual assault; sexual harassment.  Boards were directed 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 that 
misconduct which led to the discharge.

13.  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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170007189

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