ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 May 2019 DOCKET NUMBER: AR20170008204 APPLICANT REQUESTS: an upgrade of his general under honorable conditions discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Memorandum from Huron County Veteran’s Affairs (VA) Office * VA Rating Decision * Department of Defense (DOD) Post Traumatic Stress Disorder (PTSD) Guidance FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, that after serving in Southwest Asia during Operation Desert Storm/Shield, he developed PTSD. During his time on active duty, PTSD was not well known and there were no treatment options or counseling available to him at that time. He asks that the Board upgrade his character of discharge to an honorable, based on the guidance published in DOD memorandum, dated 3 September 2014 concerning discharges where PTSD may have been a factor. He states he believes he was suffering from PTSD at the time of the offenses and at the time of discharge. 3. The applicant provides: a. Memorandum from Huron County VA Office, dated 22 March 2017, which states that the applicant was recently diagnosed with PTSD by the VA and an upgrade is warranted. b. VA Rating Decision, dated 10 March 2017. c. DOD PTSD Guidance, dated 3 September 2014. 4. A review of the applicant’s service record shows: a. His DD Form 4 (Enlistment/Reenlistment Document) reflects that he enlisted on 26 July 1989, in the Regular Army (RA). b. His DA Form 2-1 (Personnel Qualification Record) reflects that he served in Germany from 12 December 1989 to 11 December 1991. It also reflects he served in Saudi Arabia from 15 December 1990 to 17 March 1991. c. On 24 May 1991, utilizing DA Form 2627, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 for one specifications of wrongful use of marijuana. His punishment consisted, in part, of reduction to E-1. d. On 14 June 1991, the applicant's company commander notified him that action was being initiated to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, paragraph 14-12c. (Commission of a Serious Offense). e. He consulted with legal counsel on 14 June 1991 and subsequently acknowledged the commander’s intent to separate him under the provisions of AR 635-200, chapter 14-12c. He declined making a statement and also declined a medical examination. (1) He acknowledged he may expect to encounter substantial prejudice in civilian life because of a general under honorable conditions discharge. (2) He understood that if he received a character of service which is less than honorable, he could make application to the Army Discharge Review Board or this Board for upgrading of the discharge; however, consideration by either board of such a request does not imply that my discharge will actually be upgraded. f. On 14 June 1991, the immediate commander formally initiated separation action against the applicant under the provisions of AR 635-200 chapter 14, paragraph 14-12c The chain of command recommended separation with an honorable discharge. g. On 21 June 1991, following a legal review for legal sufficiency, the separation authority approved the request for discharge for commission of a serious offense and ordered his service be characterized as an general under honorable conditions. h. He was discharge don 3 July 1991. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged from active duty under the provisions of AR 635-200, Chapter 14-12c with a general, under honorable conditions characterization of service. He had 1 year, 11 months, and 8 days of active duty service. He was awarded or authorized: * Army Service Ribbon * National Defense Service Medal * Southwest Asia Service Medal with 2 bronze service stars * Kuwait Liberation Medal * Marksman Marksmanship Badge with Rifle Bar (M-16) * Marksman Marksmanship Badge with Pistol Bar (9mm) * Expert Marksmanship Badge with Hand Grenade Bar * Expert Marksmanship Badge with Pistol Bar (.45 Cal) 5. On 6 July 2017, the Army Review Boards Agency medical advisor/psychologist reviewed the applicant's case and rendered an advisory opinion and opined: a. The applicant did meet medical retention standards in accordance with Chapter 3, Army Regulation (AR) 40-501 (Standard of Fitness), and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement or Separation), that were applicable to the applicant's era of service. b. It is unknown if the applicant's mental-health conditions were considered at the time of his separation. c. A review of available documentation did not discover evidence of a mental health considerations that bears on the character of the discharge in this case. A mitigating nexus between the applicant's misconduct and his mental health was not discovered. 6. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal. He did not respond. 7. 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. 8. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the medical advisory finding that there was no evidence of a mental health considerations that would bear on the character of the discharge, as well as the lack of character evidence to show that the applicant has learned and grown from the events which led to his discharge, the Board concluded that the characterization of service received at the time of discharge 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. 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. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors, when taking action on applications from former service members administratively discharged under other than honorable conditions, and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 4. 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. 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. ABCMR Record of Proceedings (cont) AR20170008204 5 1