ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  25 April 2019

	DOCKET NUMBER:  AR20170014763


APPLICANT REQUESTS: reconsideration of Army Board for Correction of Military Records (ABCMR) Army Docket Number AR20130010535 wherein the applicant requested an upgrade of his under other than honorable conditions discharge.  In addition, the applicant requests a personal appearance hearing by the ABCMR.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for the Review of Discharges or Dismissall from the Armed Forces of the United States) 
* Department of Veterans Affairs (VA) medical records (excerpts) 

FACTS:

1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130010535 on 11 February 2014.

2.  The applicant submitted DD Form 293 in lieu of a DD Form 149 (Application for Correction of Military Records). 

3.  Within the DD Form 293 he states, in effect, the reasons for his discharge are attributable to his mental health condition of post-traumatic stress disorder (PTSD).  The VA considers his periods of service as dishonorable for benefit purposes (based on the rules and regulations governing the VA).  He has been denied medical treatment for his PTSD by the VA.  He provides new evidence not previously considered by the Board that now warrants consideration.  He provides evidence to support his diagnosis of PTSD as shown in his VA medical records based on the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM-V). 

     a.  He states he needs help with his PTSD, depression and numerous other health issues.  He believes the stress of being deployed in Operation Iraqi Freedom with an undiagnosed mental illness caused him to act in the way that he did.  He asserts he was not himself at the time of the incident(s).  He expresses his sorrow for his offenses specifically for breaking the law, his behavior and conduct as an officer.  He accepts full responsibility for his misconduct that led to his discharge.  It is this mistake that stops him from receiving VA medical treatment and/or compensation benefits for his PTSD and depression.  He has lost almost everything because of mistakes he made while an officer in the Army.

     b.  Since he was discharged he now suffers from nightmares, flashbacks, reminders of traumatic events, negative beliefs within himself, alienation, aggressive behaviors, hyper vigilance and has difficulty sleeping.  The VA continues to deny him treatment for his various illnesses and health conditions.  When he seeks treatment at the VA, he has to pay for his medical treatment and medications.  He also is the lowest priority for treatment at the VA.  He has a 7 year history of appealing to the VA, but they will not change his status based on his type of discharge.  He pleads with the Board to upgrade his discharge from under other than honorable conditions to at least a general, under honorable conditions discharge.  

     c.  He believes his PTSD began and was then aggravated by his service in the Demilitarized Zone, United Nations Command, Camp Kitty Hawk, Joint Security Area, Panmunjom, South Korea when he was engaged in a firefight on Thanksgiving Day in 1983.  He reports there were eight North Korean soldiers killed in action and a South Korean soldier also died of his wounds.  His roommate was shot in the jaw.

     d.  His next traumatic event was during his first deployment in support of Operation Desert Storm and Desert Shield where he saw numerous situations and dead bodies after the United States Air Force bombardment of the Iraqi forces.  This deployment aggravated his undiagnosed PTSD. 

     e.  His third deployment was to Bosnia in support of Operation Joint Endeavor with events occurring every day.  He witnessed and saw many families with their homes destroyed.  The "enemy" had complete disregard for human life.  He witnessed the mass graves and saw dead bodies floating down the river to his bridge site.  He saw many bad things during this third deployment. 

     f.  His fourth deployment was in support of Operation Iraqi Freedom.  To him, one of the most shocking experiences was finding a random dead body out in the middle of nowhere just left as is.  He states that one day (the local national(s)) were helping them build the United States Armed Forces installations and the next day (the local national(s)) just disappeared.

     g.  He attributes these multiple deployments and their related experiences, situations, events, and those situations he cannot speak about, changed who he was and are completely related to his behaviors and conduct that led to his discharge.  He feels remorseful, regretful, shameful and stupid that he did what he did to himself after all the hard work he put into being a Soldier and officer.  He seeks compassion from the Board in its decision to upgrade his discharge. 

4.  With prior enlisted service in the Regular Army, the applicant entered the U.S. Army Reserve Officers’ Training Corps.  He was commissioned a second lieutenant in the U.S. Army Reserve (USAR) on 7 May 1988. 

5.  On 25 November 1989 he entered active duty as a USAR commissioned officer and served for more than 3 years.  When he was released from active duty on 1 July 1993, he was transferred to the USAR Control Group (Reinforcement).  During this period of active service he was promoted to the rank and grade of first lieutenant/O-2 on 17 May 1991.  

6.  His records show he served in Southwest Asia from 19 September 1991 to 18 April 1992 and Bosnia from 23 June 1996 to 22 March 1997.

7.  He was ordered to extended active duty on 26 September 1999. He was promoted to major on 1 January 2004 and he served in Iraq from 26 April 2004 through 25 January 2005.

8.  On 21 May 2010, the applicant was notified in writing of an Initiation of elimination action under the provision of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraphs 4-b and 4-2c, by reason of misconduct or professional dereliction.  He was directed to show cause for retention in the Army. He was advised of his rights and that his elimination was based on:

     a.  Personal misconduct and conduct unbecoming an officer, including bulk cash smuggling, false statements, and other acts affecting a personal financial interest (conflict of interest) which led to his indictment in the U.S. Federal District Court.

     b.  Derogatory information, a General Officer Memorandum of Reprimand, dated 31 August 2000, for displaying poor judgment and dishonest conduct in falsifying and submitting official documents for personal gain, which resulted in him receiving extra pay from the U.S. Government for which he was not entitled.

     c.  Discreditable failure to meet personal financial obligations as exemplified by his failure to pay family support in accordance with Army Regulation 608-99 (Family Support, Child Custody, and Paternity).

9.  On 13 July 2010, after consulting with counsel, the applicant voluntarily tendered his resignation under the provisions of Army Regulation 600-8-24 in lieu of further elimination proceedings.  He acknowledged he understood he could receive a general or an under other than honorable conditions discharge and the results of issuance of an under other than honorable conditions discharge.

10.  On 14 July 2010, the applicant’s commanding general endorsed the applicant’s request for resignation in lieu of elimination to the Commander, U.S. Army Human Resources Command for appropriate action.  His commanding general recommended the applicant be discharged with a characterization of service of under other than honorable conditions.  He states, "Such a characterization of service is appropriate for an officer who compromised himself by bulk cash smuggling, false statements and other acts affecting a personal financial interest." 

11.  The applicant in the process of waiting for a decision concerning his request for resignation, entered the physical disability evaluation system.  On 1 October 2010, a PEB convened and considered his medical conditions of asthma (since 2006) and left shoulder (non-dominant) arthropathy following shoulder dislocations (2005 motorcycle accident and in 2007 while performing physical fitness training).  He had arthroscopic repair in May 2008.  The PEB found these two conditions to be unfitting for the demands of his area of concentration, rank and rating with ratings of 30 percent and 10 percent, respectively.  There were numerous medical conditions the PEB found to be fitting including dysthymic disorder as per his medical evaluation board.  The PEB recommended permanent retirement with a combined rating of 40 percent.  He concurred with the PEB findings and recommendations.  The PEB was approved on 5 October 2010 by an appropriate authority.

12.  An Ad Hoc Review Board (elimination board) considered his case and recommended his separation with an under other than honorable conditions characterization of service.  On 1 November 2010, the Deputy Assistant Secretary – Review Boards (DASA (RB)), after review of the PEB and the applicant's resignation in lieu of elimination request with supporting information, affirmed her decision to accept the applicant's resignation and directed he be discharged from the U.S. Army with an under other than honorable conditions characterization of service.

13.  Accordingly, the applicant was discharged from the Army in the rank of major on 16 November 2010, under the provisions of Army Regulation 600-8-24, paragraph 4-2b.  His service was characterized as under other than honorable conditions. 

14.  On 11 August 2011, the Army Discharge Review Board determined that he was properly and equitably discharged and denied his request for a change in the character and/or reason for his discharge.

15.  The applicant petitioned the ABCMR to have his discharge upgraded.  On 11 February 2014 the ABCMR denied his request which is recorded in Army Docket Number AR20130010535.  The Board stated he had provided no evidence or a convincing argument to show his discharge should be upgraded.  He had provided no evidence to show his medical conditions attributed toward his multiple acts of misconduct.  The Board concluded by stating it does not grant relief solely for the purpose of qualifying an applicant for medical or other benefits administered by the VA.  

16.  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 post-traumatic stress disorder (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.

17.  As evidence to support this application, the applicant provided excerpts from his VA records showing he was assessed for PTSD on or about 23 June 2017 during an appointment at his local VA facility.  The record supports his position that he has service-connected PTSD because he meets the criteria of the DSM-V based on the stressors he had identified in earlier interviews.  At the time he did not have more than one diagnosed mental health disorder.  The examiner found he had occupational and social impairments with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood. 

18.  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 (TBI); sexual assault; or sexual harassment.  Boards are 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 misconduct that led to the discharge.

19.  On 2 November 2017, the Army Review Boards Agency (ARBA) staff psychologist provided an advisory opinion.  The advisory found the available documentation showed the applicant met medical retention standards for PTSD and depression (dysthymic disorder).  Further, there was no indication for reevaluation within the physical disability evaluation system.  The psychologist was asked to review the records and determine of there was a nexus between the applicant’s VA diagnosis of PTSD and his misconduct that led him to request resignation in lieu of elimination.  She opined that his mental health conditions, whether diagnosed or undiagnosed during his period of active service, were not reasonably related to his multiple acts of misconduct that led to his separation.  She concludes by saying there is no evidence a behavioral health condition mitigated his misconduct or that his post service diagnosis warrant a change to his characterization of service.

20.  A copy of the complete medical advisory was provided to the Board for their review and consideration.

21.  The applicant was provided a copy of the advisory opinion on 7 November 2017 and given an opportunity to submit comments.  He did not respond. 

22.  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 on the basis of 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.

BOARD DISCUSSION:

1.  After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief.  The board applied Office of the Secretary of Defense standards of liberal consideration to the complete evidentiary record, including the applicant’s statement and did not find any evidence of error, injustice, or inequity; the Board agreed that the applicant’s discharge characterization is appropriate for the severity and pattern of misconduct. The Board agreed that PTSD did not mitigate the types of misconduct for which the applicant received the Under than Honorable Conditions discharge.  The Board further determined that the evidence of record was sufficient to render a fair and equitable decision.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

 
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.


ADMINISTRATIVE NOTE(S):

Not Applicable


REFERENCES:

1.  Army Regulation 600-8-24 (Officer Transfers and Discharges) sets the basic authority for the transfer or discharge of officers from active duty.  The regulation states in:

     a.  Paragraph 4-2b, action may be or will be initiated for eliminating officers in the Active Army for misconduct, moral or professional dereliction, or in the interests of national security. An under other than honorable conditions discharge will normally be issued when an officer is discharged for an involuntarily separated due to misconduct, moral or professional dereliction, or for the final revocation of a security clearance as a result of an act or acts of misconduct, including misconduct for which punishment was imposed.

     b.  Paragraph 4-3, an officer referred or recommended for elimination under this chapter who does not meet medical retention standards will be processed through both the provisions of this regulation and through the medical evaluation board (MEB)/PEB process as described in paragraph 1- 22.  If a physical or mental condition develops after an officer has been recommended for involuntary separation or after the Board of Inquiry proceedings are completed the officer’s commander will immediately notify the U.S. Army Human Resources Command, Fort Knox, KY.

     c.  Paragraph 1-22, when an officer’s tour of active duty is terminated due to discharge, retirement or release from active duty the period of service will be characterized as "Honorable, "General (Under Honorable Conditions)", "Under Other Than Honorable", or "Dishonorable."  The character of service will be predicated on the officer's behavior and performance while a member of the Army.  Characterization normally will be based on a pattern of behavior and duty performance rather than an isolated incident.  However, there are circumstances in which conduct reflected by a single incident may provide the basis of characterization of service when the quality of the officer's service has met the standards of acceptable conduct and performance of duty.

     d.  Paragraph 1-22a, an Honorable Discharge Certificate will be issued when the separation is based solely on pre-service activities, substandard performance of duty, or final revocation of a security clearance for reasons that do not involve acts of misconduct.

     e.  Paragraph 1-22b, a general discharge will be issued when the officer's military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A separation under honorable conditions will normally be appropriate when an officer:

* submits an unqualified resignation or a request for release from active duty under circumstances involving misconduct
* is separated based on misconduct, including misconduct for which punishment was imposed, which renders the officer unsuitable for further service, unless an under other than honorable conditions separation Is appropriate
* is discharged for the final revocation of a security clearance as a result of an act or acts of misconduct, including misconduct for which punishment was imposed, unless a discharge under other than honorable conditions is appropriate

     f.  Paragraph 1-24, if a commissioned officer is being processed for release from active duty, separation, or retirement or has been referred for elimination action, when it is determined that the officer has a medical impairment that does not meet medical retention standards, the officer will be processed as set forth in foregoing paragraphs.

     g.  Paragraph 1·24a, a commissioned or warrant officer under Investigation for an offense chargeable under the Uniform Code of Military Justice that could result in dismissal or punitive discharge may not be referred for or continue disability processing unless:

* the investigation ends without charges
* the commander exercising proper court-martial jurisdiction dismisses the charges
* the commander exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such a sentence

     h.  Paragraph 1-24c, in the case of an officer processed for separation or retirement for misconduct whose physical disability evaluation results in a finding of unfitness and a recommendation that the officer be separated or permanently retired, the Secretary of the Army or his designee may direct that either the separation or retirement action under this regulation or the disability action take precedence.

2.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that 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.  The Board will determine if a formal hearing is warranted. 

3.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.

     a.  Chapter 3 states the mere presence of 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating.

     b.  Chapter 4 provides guidance on referring Soldiers for evaluation by a medical evaluation board (MEB) when a question arises as to the Soldier's ability to perform the duties of his or her office because of physical disability.

4.  Army Regulation 40-501 (Standards of Medical Fitness) Chapter 3 (Medical Fitness Standards for Retention and Separation, including Retirement) provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below acceptable physical standards.  For anxiety, somatoform, dissociative disorders and mood disorders (depression) a Soldier can be referred to a MEB if the medical condition(s) require extended or recurrent hospitalization, limitation of duty or duty in a protected environment or interfere with effective military performance.  


ABCMR Record of Proceedings (cont)	 AR20170014763


8


1