IN THE CASE OF:  BOARD DATE:  28 July 2020 DOCKET NUMBER:  AR20170015588 


APPLICANT REQUESTS:  through counsel, in effect, reconsideration of the Army  
Discharge Review Board (ADRB) decision of 24 July 2017, to grant the following relief: 

.upgrade the characterization of his service from under honorable conditions(general) to honorable;

.change his reentry eligibility (RE) code from "3" to "1"; and

.change his narrative reason for separation from "misconduct" to "Secretarial


Plenary Authority"

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.a letter and accompanying request from a U.S. Senator

.a 9-page Affidavit and Curriculum Vitae

.ADRB Case Report and Directive

.Voided DA Form 214 (Certificate of Release or Discharge from Active Duty)

.DA Form 214

.a letter from counsel dated 21 September 2017

.3 pages of electronic mail (email) dated 21 to 25 September 2017

.a letter from counsel dated 13 October 2017



FACTS: 

1.The applicant did not file within the three-year period provided in Title 10, UnitedStates Code, in section 1552(b); however, the ABCMR conducted a substantive reviewof this case and determined it is in the interest of justice to excuse the applicant's failureto timely file.

2.In a 13 October 2017 letter to the Acting Deputy Director, ADRB, counsel states, ineffect:

a.On 2 October 2017, the ADRB issued a decision granting in part and denying inpart the applicant's application.  Specifically, the ADRB upgraded the characterization of his discharge, amended the narrative reason for separation, and denied a change in RE code.  As part of that decision, the ADRB upgraded the applicant's discharge 
characterization from under other than honorable conditions to general, under honorable conditions, but did not upgrade the applicant's discharge to honorable, as requested in his application.  The applicant is deeply appreciative of the ADRB's consideration of his application and its recognition that the applicant's under other than honorable conditions discharge was improper in light of the length of his service and personal circumstances.  Nevertheless, the ADRB's decision made conclusions against the record without the benefit of current decisional authority.  

b.The ADRB appears to have failed to take into account the clarifying guidancerecently issued by A.M. Kurta, performing the duties of the Under Secretary of Defense for Personnel and Readiness, on August 25, 2017, which pertains to requests for modification of discharge due to mental health conditions, sexual assault, and sexual harassment, (the "Clarifying Guidance").  As set forth in a letter we submitted to the Board on 21 September 2017, the Clarifying Guidance is directly applicable to the applicant's application in numerous respects.  Of note, the Clarifying Guidance provides that, absent clear evidence to the contrary, a diagnosis rendered by a licensed psychologist will receive liberal consideration and is evidence the veteran had a condition that may excuse or mitigate the discharge.  Clarifying Guidance, Parts 9      and 13. 

c.On 25 September 2017, we received an email assuring us that the ADRBconsidered the new guidance during the adjudication of the applicant's case.  The ADRB's decision, however, contains no indication that the Clarifying Guidance was considered and its decision, in fact, makes clear that the ADRB did not apply the Clarifying Guidance to the applicant's application.  Indeed, the ADRB's "Regulatory Citation(s)" do not reference the Clarifying Guidance, quoting at length instead from the 3 September 2014 guidance on post-traumatic stress disorder (PTSD). 

d.The ADRB's failure to apply the Clarifying Guidance is reflected in its decision,including with respect to key findings that seem to have resulted in denial of certain aspects of the applicant's application.  Of particular concern, the ADRB found that "[t]here is no evidence in the record, nor has the applicant produced any evidence to support the contention that PTSD caused his misconduct."  The evidentiary record, including applicant's written submissions and the evidence presented at the applicant's 24 July 2017, hearing, directly belies this finding.  That record includes the uncontested written report of Stephen Reich, Ph.D., a licensed forensic psychologist, who specifically found that the applicant was suffering from undiagnosed and untreated PTSD during his Army service as a result of the extraordinary emotional trauma he suffered due to his upbringing and the tragic killing of his father not long before he enlisted.  Dr. Reich concluded, "the misconduct that led to [the applicant's] discharge from the United States Army" was "caused by the emotional disturbance that he was experiencing."  Dr. Reich further found that the applicant's use of alcohol in the military was an attempt to self-medicate his then undiagnosed and untreated PTSD, which ultimately led to the minor 
disciplinary infractions that resulted in his discharge.  Dr. Reich testified during the hearing to the same effect, noting that PTSD preceded the applicant's enlistment in the Army and was aggravated by his service as a cannon crewmember.  Under the Clarifying Guidance, "[a] diagnosis made by a licensed psychiatrist or psychologist" should be liberally considered.  Clarifying Guidance, Part 13 further states, "substance-seeking behavior and efforts to self-medicate symptoms of a mental health condition may warrant consideration."  Id., Part 19.  Notwithstanding these provisions, the ADRB's decision suggests that it simply disregarded Dr. Reich's expert opinion and testimony and/or unilaterally decided to not consider it.  It did so despite the fact that no evidence whatsoever was presented to refute Dr. Reich's well-reasoned opinions.  The ADRB's disregard of Dr. Reich's opinions and testimony is inconsistent with the Clarifying Guidance. 

e.If the ADRB had considered the Clarifying Guidance in the applicant's case, werespectfully submit that it would have reached a different result.  Specifically, we believe that proper application of the Clarifying Guidance would have resulted in the ADRB upgrading the characterization of his service to honorable and changing the narrative reason for separation to "Secretarial Plenary Authority." 

f.Second, the ADRB's decision states that the applicant "requests ... a change tothe narrative reason for separation to include the RE code."  This is incorrect.  The applicant requested a change in his narrative reason for discharge to "Secretarial Plenary Authority."  It is unclear from the decision whether the ADRB meant to deny the applicant's request for a narrative change or simply failed to clarify that his request had been granted.  On this point, we note that the cover letter authored by Colonel Michael G.Pratt addressed to Senator Gillibrand states that the narrative reason for separationwas in fact amended to "Secretarial Plenary Authority."  However, the decision statesthe narrative reason as "minor misconduct."  We therefore respectfully request that thedecision be amended to accurately reflect the applicant's request.  Assuming thatColonel Pratt's characterization is correct, we also respectfully request that the decisionand the applicant's Form DD 214 be amended to reflect that the request to change hisnarrative reason to "Secretarial Plenary Authority" has been granted.

3.The applicant enlisted in the Regular Army (RA) on 23 March 1999.

4.The applicant's records contain:

a.DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of MilitaryJustice (UCMJ)), dated 23 March 2000, which shows he received punishment under Article 15, UCMJ for on or about 15 November 1999, for wrongfully using marijuana. 

b.DA Form 2627-1 (Summarized Record of Proceedings Under Article 15, UCMJ),dated 1 October 1999, which shows he received punishment under Article 15, UCMJ for 
on about 20 September 1999, failing to report to formation on time for a major Field Training Exercise. 

c.DA Form 4126-R (Bar to Reenlistment Certificate), dated 5 October 2000.

d.DA Form 2627, dated 10 October 2000, which shows he received punishmentunder Article 15, UCMJ for on or about 7 August 2000, as a result of wrongful previous overindulgence in intoxicating liquor or drugs incapacitated for the proper performance of his duties. 

e.Numerous developmental counseling forms from throughout his service, whichdetail his repeated failure to comply with Army Regulations.  Evidence shows multiple instances of failing to follow instruction, failing to report to formation or be at his appointed place of duty, disobeying lawful orders, underage drinking, missing equipment, sleeping on duty, being out of uniform and/or presenting a generally poor appearance.    

5.The applicant received a separation physical on 26 October 2000, and a mentalhealth evaluation on 4 January 2001.  The psychologist opined the applicant had themental capacity to understand and participate in the proceedings, was mentallyresponsible and based on the evaluation, was psychiatrically cleared for anyadministrative action deemed appropriate by the command.

6.On 26 February 2001, the applicant's immediate commander notified him of hisintent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for a pattern ofmisconduct.  The specific reasons for the proposed action were:

a.Failing to be at his appointed place of duty on 9 occasions, receipt of a CompanyGrade Article 15 for two accounts of overindulgence in intoxicating liquor; and receiving a Field Grade Article 15 for wrongful use of marijuana. 

b.His commander recommended the issuance of an under other than honorableconditions discharge. 

7.On 26 February 2001, the applicant acknowledged receipt of the commander's intentto separate him.  On 28 February 2001, he consulted with legal counsel and he wasadvised of the basis for the contemplated separation action for misconduct, the type ofdischarge he could receive and its effect on further enlistment or reenlistment, thepossible effects of this discharge, and of the procedures/rights that were available tohim.  He acknowledged he understood that he could expect to encounter substantialprejudice in civilian life if an under honorable conditions (general) discharge was issued
to him.  He indicated statements in his own behalf were submitted; however, the record did not contain statements in his own behalf.  He requested consulting counsel and/or civilian counsel at no expense to the Government. 

8.On 28 February 2001, subsequent to the applicant's acknowledgement, hisimmediate commander initiated separation action against him in accordance with ArmyRegulation 635-200, paragraph 14-12b, for a pattern of misconduct.  He recommendedto the separation authority that the applicant's service be characterized as under otherthan honorable conditions.

9.The intermediate authorities also recommended approval of the discharge actionwith an under other than honorable conditions discharge.

10.On 12 April 2001, the separation authority approved the applicant's discharge underthe provisions of Army Regulation 635-200, paragraph 14-12b, by reason of a pattern ofmisconduct, and directed he be discharged with an under other than honorableconditions characterization of service.

11.On 2 May 2001, the applicant was discharged accordingly.  His DD Form 214confirms he was discharged under the provisions of Army Regulation 635-200,paragraph 14-12b, by reason of misconduct with an under other than honorableconditions character of service and an RE code of 3.  He completed 2 years, 1 month,and 10 days of net active service during this period with no time lost.

12.On 30 April 2016, the applicant applied to the ADRB for an upgrade of hisdischarge within that board's 15-year statute of limitations.

13.On 24 July 2017, the ADRB unanimously determined the characterization of hisservice was too harsh based on the applicant's length of service and the personaltestimony presented.  The Board found the circumstances surrounding the discharge(i.e. severe family matters, post service diagnosis of PTSD and post serviceaccomplishments) mitigated the discrediting entry in his service record.  Accordingly,the Board voted to grant relief in the form of an upgrade of the characterization of hisservice to general, under honorable conditions and changed the separation authority toArmy Regulation 635-200, paragraph 14-12a, by reason of misconduct (minorinfractions).  The original DD Form 214 was voided in his records and he was issued anew DD Form 214 which lists the characterization of his service as under honorableconditions (general), the narrative reason for separation as misconduct (minorinfractions), and a RE code of 3.

14.An RE code of 1 applies to Soldiers completing their term of active service who areconsidered qualified to reenter the U.S. Army.  They are qualified for enlistment if allother criteria are met.  An RE code of 3 applies to Soldiers who are not considered fullyqualified for reentry or continuous service at time of separation, but the disqualificationis waivable.  However, those individuals are ineligible unless a waiver is granted.

15.On 25 August 2017, the Office of the Undersecretary of Defense for Personnel andReadiness issued clarifying guidance for the Secretary of Defense Directive toDischarge Review Boards (DRBs) and Boards for Correction of Military/Naval Records(BCM/NRs) when considering requests by Veterans for modification of their dischargesdue in whole or in part to:  mental health conditions, including PTSD; traumatic braininjury; sexual assault; or sexual harassment.  Boards are to give liberal consideration toVeterans petitioning for discharge relief when the application for relief is based in wholeor in part to those conditions or experiences.  The guidance further describes evidencesources and criteria and requires Boards to consider the conditions or experiencespresented in evidence as potential mitigation for misconduct that led to the discharge.

16.On 25 July 2018, the Under Secretary of Defense for Personnel and Readinessissued guidance to Military Discharge Review Boards and BCM/NRs regarding equity,injustice, or clemency determinations.  Clemency generally refers to relief specificallygranted from a criminal sentence.  BCM/NRs may grant clemency regardless of the typeof court-martial.  However, the guidance applies to more than clemency from asentencing in a court-martial; it also applies to other corrections, including changes in adischarge, which may be warranted based on equity or relief from injustice.

a.This guidance does not mandate relief, but rather provides standards andprinciples 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.   

b.Changes to the narrative reason for discharge and/or an upgraded character ofservice granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 

17.The Army Review Board Agency (ARBA) Medical Advisor reviewed the supportingdocuments and the applicant’s medical records in the Armed Forces Health Longitudinal











Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: a.While liberal consideration guidance was applied, the applicant is not serviceconnected or diagnosed with PTSD through the VA.  The Board already credited the applicant with an EPTS PTSD diagnosis.  Given the VA has not diagnosed PTSD or service connected him for the condition since that time, any further upgrades are not recommended. b.The applicant had a prior ARBA case submitting a 2017 civilian assessmentdiagnosing PTSD exiting prior to service (EPTS).  The ADRB subsequently upgraded his discharge from OTH to General noting the discharge was too harsh and acknowledging the EPTS PTSD. No new medical information was submitted with this reapplication; however there were VA records subsequent to his upgrade and eligibility. c.Due to the period of service, active duty medical records are void.  Active dutyhard copy medical records were unavailable.  The electronic packet contained a Chapter Mental Status Exam (MSE) clearing the applicant with no diagnosis. d.The applicant is not service connected.  In December 2018, the applicant went tobehavioral health noting a need to obtain a VA diagnosis of PTSD for service connection. The applicant reported a non-VA diagnosis of PTSD related to a “chokehold by a superior officer for several minutes until other officers intervened;” incongruent with records indicating PTSD was EPTS.  The applicant attended sessions with a diagnosis of Adjustment Disorder. 18.The Board should consider the evidence and the applicant's statements inaccordance with the 25 July 2018, Under Secretary of Defense for Personnel andReadiness issued guidance to Military Discharge Review Boards and BCM/NRsregarding equity, injustice, or clemency determinations.BOARD DISCUSSION: After review of the application and all evidence, the Board found insufficient evidence to grant relief.  The Board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and found insufficient evidence of error, injustice, or inequity.  The Board considered the applicant's record of service, the frequency and nature of his misconduct and the reason for his separation.  The Board agreed with the ARBA Medical AdvisoryOpinion that the VA has not service-connected the applicant for PTSD.  The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination.  The Board further found the applicant’s prior dischargeupgrade through the ADRB was proper and equitable.  The Board agreed that the applicant’s discharge characterization, narrative reason and RE Code is appropriate.



BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: : : 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. 


X 

I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. 






REFERENCES: 

1.Title 10, United States Code, section 1552(b), provides that applications forcorrection of military records must be filed within 3 years after discovery of the allegederror or injustice.  This provision of law also allows the ABCMR to excuse an applicant'sfailure to timely file within the 3 year statute of limitations if the Army Board for
Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 
 
2.  Army Regulation 635-200 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 included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for misconduct.  However, a discharge under honorable conditions (general) or an honorable discharge may be granted. 
 
 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. 
 
 d.  Paragraph 5-3 (Secretarial plenary authority) provides that a separation under this paragraph is the prerogative of the Secretary of the Army.  Secretarial plenary separation authority is exercised sparingly and seldom delegated.  Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army.  Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee as announced in updated memorandums.  Secretarial separation authority is normally exercised on a case-by-case basis but may be used for a specific class or category of Soldiers.  When used in the latter circumstance, it is announced by special HQDA directive that may, if appropriate, delegate blanket separation authority to field commanders for the class category of Soldiers concerned. 
3.  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; 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. 
 
4.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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.   
 
 a.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, 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.   
 
 b.  Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 
 
5.  Army Regulation 601-210 (RA and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve.  Table 3-1 includes a list of the RA RE codes.  An RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.  An RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but the disqualification is waivable.  However, those individuals are ineligible unless a waiver is granted.  RE code 4 applies to persons separated from their last period of service who have a nonwaivable disqualification and are ineligible for reentry.  
//NOTHING FOLLOWS//