ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 May 2019 DOCKET NUMBER: AR20170007812 APPLICANT REQUESTS: his character of service upgraded to honorable and his narrative reason for separation changed to medical retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Memorandum of Support from Attorney X___ X___ * Physical Evaluation Board (PEB) Recommendations * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Page Three of Hearing Transcript * Legal Review * Enlisted Efficiency Reports * Separation Board Findings and Recommendations * Portion of Hearing Transcript. * Department of Defense (DOD) 2014 Guidance of Post-Traumatic Stress Disorder (PTSD) FACTS: 1. The applicant’s counsel states, that it was an error for the Army to discharge the applicant with a general discharge and it was a violation of the Army’s limited use policy of Army Regulation (AR) 600-85 (The Army Substance Abuse Program), paragraph 2-6h. It was unjust not to medically retire a combat veteran with 13 plus years of service, where a 70% rating for PTSD is supported by the veteran’s medical record at the time of discharge, medical evaluation board (MEB), and findings of the PEB. 2. The applicant provides: a. Memorandum of Support from council which states that as a result of an administrative error the applicant should be medically retired at 70% disability as recommended by the PEB evaluation board (PEB). He states: (1) The Army violated the limited use policy when the applicant tested positive on a urinalysis while enrolled in the Army substance abuse program (ASAP). The limited use policy prohibits the use of by the government of protected evidence against a Soldier on the characterization of service in administrative proceedings. The policy limits the discharge to honorable if protective evidence is used. After being informed of all options to discharge the applicant, the separation approval authority chose under other than honorable conditions. To correct this injustice, the applicant should be medically retired honorably. In addition to the administrative errors, the decision of separation board and the Command was unjust when they failed to give proper consideration to the majority of good military service from his last reenlistment in 2012 to the date of the failed urinalysis in May 2014. (2) The applicant enjoyed an excellent military service record for over 12 active years with two overseas tours in Korea and two deployments to the Middle East. Not permitting the applicant to medically retire resulted in an injustice to him. These Army actions denied this combat veteran with 14 years active service, who suffers from PTSD, medical benefits for his wife and children and additional financial benefits from the Combat Related Special Compensation (CRSC) program. It was unjust and an error for the command to determine that the applicant's medical conditions including PTSD were not a direct or substantial contributing cause of the conduct which led to the recommendation of administrative separation. His PTSD was a substantial contributing cause to his use of Spice (synthetic cannabinoids, synthetic marijuana). Unfortunately, many active duty military and veterans who suffer from PTSD resort to marijuana and Spice use to self-medicate their depression and anger. Therefore, the separation board should have considered that the applicant’s misconduct, use of spice had a correlation to his medical diagnosis of PTSD. The failure to consider that his medical condition contributed to his misconduct resulted in an injustice. Consequently, for the above reasons the Army Board for Correction of Military Records (ABCMR) should find that there was an injustice and recommend that he receive an honorable characterization of service and be medically retired as determined by the Army PEB with a 70% rating. b. Page Three of Hearing Transcript, which states that the positive test and use of an unauthorized substance had negative effects on the unit’s morale, and that the applicant disobeyed orders on multiple occasions. It also states that prior to being reduced in rank, the applicant was a sub-standard Soldier, ranking in the bottom five percentile of all noncommissioned officers in the unit. The commander of the applicant’s unit saw no reason the applicant should be retained in the Army. c. Legal Review, dated 2 October 2015, which states that the Army’s limited use policy, as outlined in AR 600-85, paragraph 10-13c, and AR 635-200 (Active Duty Enlisted Administrative Separations), paragraph 2-6h, entitle the applicant to an honorable character of discharge since his positive urinalysis was considered protected evidence. d. Evaluation Reports for the rating periods 23 January 2011 through 22 January 2012; 23 January 2012 through 22 January 2013; 23 January 2013 through 31 December 2013. e. Administrative separation board findings and recommendations, which states the administrative separation board recommended the applicant be separated from the Army with a General, under honorable conditions characterization of service. f. Portion of Hearing Transcript, which states a portion of the hearing pertaining to the applicant. g. DOD 2014 Guidance of PTSD, dated 3 September 2014. 3. A review of the applicant’s service record shows: a. He enlisted on 22 May 2002 in the Regular Army (RA). He served overseas in Korea from 2 December 2002 to 29 December 2003 and Iraq from 19 January 2005 to 21 January 2006. b. On 7 July 2008, the applicant’s formal PEB findings, resulted in him being declared physically fit to perform the duties of his office, grade, rank and military occupational specialty (MOS). He failed to make an election on 24 June 2008, so the findings were forwarded for further processing. c. He reenlisted in the RA on 21 October 2008. d. On 16 December 2010, the applicant accepted nonjudicial punishment (NJP) for three counts of failing to be at appointed place of duty, and one count of dereliction of duty. e. He reenlisted in the RA on 18 May 2012. He served in Bahrain from 7 December 2012 to 11 September 2013. f. On 11 July 2014, the applicant accepted NJP for one specification of wrongfully using synthetic cannabinoids, a schedule one controlled substance. His punishment in part was reduction to SPC/E-4. g. On 6 October 2014, an MEB was conducted which found the applicant to have PTSD, major depressive disorder, generalized anxiety disorder and type II diabetes. The board referred its findings to the PEB. h. On 15 October 2014, the immediate commander notified the applicant of his intent to initiate separation action to separate him under the provisions of Army Regulation (AR) 635-200, chapter 14 (Separation for Misconduct), paragraph 14-12c (commission of a serious offense). He recommended an under other than honorable conditions discharge. i. He consulted with legal counsel on 15 October 2014, and subsequently acknowledged the commander’s intent to separate him under the provisions of AR 635-200, chapter 14-12c. He submitted a conditional waiver on 8 January 2015, which was denied by his chain of command. He requested consideration of his case by an administrative separation board and personal appearance before such board. j. Meanwhile, on 14 January 2015, an informal PEB proceedings found the applicant was physically unfit and recommended a rating of 70% for PTSD with co-morbid major depressive disorder, with psychotic features, and generalized anxiety disorder. The PEB recommended his placement on the temporary disabled retired list (TDRL). The applicant concurred with the PEB findings and waived a formal hearing of his case. The applicant did not request a reconsideration of his VA ratings. k. An administrative separation board convened on 17 September 2015 to consider whether the applicant should be retained or separated. The administrative separation board found/recommended: * the applicant did on or about 4 May 2014 to 7 May 2014, wrongfully use synthetic cannabinoids, a schedule I controlled substance * the offense does warranted separation * in view of the findings, the board recommended the applicant be discharged in accordance with AR 635-200, chapter 14-12c with an general, under honorable conditions characterization of service l. On 2 October 2015, a legal review of the administrative separation board proceedings was conducted and determined: * sufficient evidence supports the findings of the board * the board's recommendation is consistent with the findings * the evidence is considered limited use evidence * The separation authority options are: * Direct retention * Approve the separation with service characterized as honorable * Set aside the proceedings and refer the case to a new board for rehearing m. On 23 November 2015, the separation authority reviewed the applicant’s MEB proceedings to determine if the applicant should be separated under AR 635-200 or processed through the physical disability system under AR 635-40. He determined that the medical condition outlined in the MEB was not a direct or substantial contributing cause of the conduct which led to the recommendation for administrative separation. Additionally, he determined that there are no other circumstances within the individual case that warrant disability processing under the provisions of AR 635-40 instead of completion of administrative separation under the provisions of AR 635-200. The separation authority approved the request for discharge for commission of a serious offense and ordered his service be characterized as general, under honorable conditions. n. The applicant was discharged on 17 March 2016. His DD Form 214 reflects he was discharged from active duty under the provisions of chapter 14-12c, AR 635-200 with an under honorable conditions characterization of service. He completed 13 years, 9 months and 26 days of active duty service. He was awarded or authorized: * Army Commendation Medal (2nd Award) * Army Achievement Medal * Army Good Conduct Award (2nd Award) * National Defense Service Medal * Global War on Terrorism Service Medal * Korea Defense Service Medal * Iraq Campaign Medal with Campaign Star * Noncommissioned officer Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon (2nd Award) 4. On 9 February 2017, Case Management Division (CMD) requested a medical review of the applicant’s alleged medical condition(s) to ascertain if condition(s) warranted separation through medical channels. As a result, on 1 June 2017, the Army Review Boards Agency medical advisor/ psychologist reviewed the applicant's case and rendered an advisory opinion and opined: a. The applicant’s medical records do at the time of his discharge reasonably support his having had a boardable medical condition for that period. b. He did not meet mental-health standards in AR 40-501 (Standards of Fitness) and AR 635-40 (Physical Evaluation for Retention, Retirement or Separation). c. Based on available behavioral-health evidence the applicant did not meet medical retirement standards. Although the applicant had diagnoses of PTSD, Major Depressive Disorder with Psychotic Features, and Generalized Anxiety Disorder endorsed by the Army PEB, his diagnosis of Antisocial Personality Disorder is consistent with these diagnoses, though having a diagnosis of Antisocial Personality Disorder increases the likelihood that a patient with this disorder would feign symptoms if it was to his advantage to do so. d. The applicant did not meet medical retention standards in accordance with Chapter 3, AR 40-501, and following the provisions set forth in AR 635-40 that were applicable to his era of service. e. The applicant’s mental-health conditions were considered at the time of his discharge from the Army. f. A review of available documentation did not discover evidence of mental health considerations that were ignored at the time a choice was made between an administrative discharge and medical retirement. 5. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal. His legal representative states some providers may have expressed different opinions about the applicant's medical diagnosis, the diagnosis is supported by the three physicians who signed his MEB and was reviewed and approved by the PEB, the boards tasked to make those determinations. Furthermore, the PTSD diagnosis was further supported by independent VA examiners. As stated the Army failed to account for the honorable service he performed during this enlistment, as well as prior enlistments during his 12 plus years of active service, as demonstrated by his enlisted efficiency reports showing excellent service. Allowing flawed evidence of his spice use during the rehabilitation program to be considered by a discharge board should have resulted in a new hearing or an award of an honorable discharge with disability. Consequently, his application should be approved. 6. By regulation, separations under the provisions of AR 635-200, chapter 14 provides policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. 7. 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 medical records of the applicant showing no signs of PTSD for 8 years after deployment, and not until after being caught using drugs, as well as the advisory opinion showing his mental status was considered by the GCMCA and all due process was afforded to the applicant at the time of his discharge, the Board concluded there was no error or injustice which would warrant making a change to the characterization or reason for separation. 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. 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 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 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, and convictions by civil authorities. 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 appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. b. 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. c. 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. 3. Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement or Separation), establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, United States Code (USC). It sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. 4. Army Regulation (AR) 40-501 (Standards of Medical Fitness), governs medical fitness standards for enlistment, induction, appointment, retention, and separation including retirement. 5. 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; TBI; 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 to 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. 6. 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) AR20170007812 7 1