ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 October 2019 DOCKET NUMBER: AR20170015981 APPLICANT REQUESTS: a reconsideration of his request to upgrade his under honorable conditions discharge and correction of his records to show he was diagnosed with post-traumatic stress disorder (PTSD), as well as bipolar disorder, and placed on the Permanent Disability Retired List. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Self-Authored statement * Character Letter from X__ X__ FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150017997 on 5 January 2017. 2. The applicant states he disagrees with the Boards previous decision and is asking for reconsideration. 3. The applicant provided: a. The applicant states he disagrees with the Board’s decision and wishes that his opinion be taken in consideration. He states if you look at the first part of his career he had plenty of success. He went from E-1/ PVT to E-6/ SSG in 4 years. He had two deployments at that time and things where looking great. The problem was he had things on his mind that he didn't know how to discuss with anyone and that had started to get to him. He states his first deployment was by himself as an individual augmentee. He had no one from his unit with him and felt alone. The only soldier that befriended him died and the walls were feeling like they were closing down on him from the things that he experienced while deployed. He states it seemed like death was all around him. There was a soldier who he had went to basic with that deployed with his unit and he attempted suicide while he was there. Once he returned things happened that he didn't want. He was starting to become unfocused, he tried to go to school in between the year from his first deployment to his second deployment. He ended up dropping out of school twice because he wasn't able to focus. The good thing is he was promoted to SGT and he started training for his second deployment with his unit this time. He states the problem now was he was having nightmares that were keeping him up at night and breaking him down as well as staying to himself a little. During his second deployment he had soldiers commit suicide and at one time while he was using the latrine someone blew up half the dining facility on the base. Along with that his unit had a big Equal Opportunity (EO) thing going with fellow noncommissioned officers (NCO's) and soldiers being together. Since he was the EO representative he was in the middle of the investigation plus trying to do his job as a Squad Leader and the senior soldier who had deployed in the unit. When he returned from this deployment things continued since he was the barracks NCO, soldiers were committing suicide in the barracks and a fellow NCO who came in to the company afterwards committed suicide. Since they were cool with each other it bothered him, he had to talk to another chaplain just like after the first time. He tried to hold it in but eventually he failed. He tried to ask for help but was told more help could end his career. Once he got to his other duty station he felt broken, barely sleeping and feeling someone was out to get him. Every time he asked for help the senior NCO's said he was young and would get over it there's nothing wrong with him. On top of that the SGT that was assigned under him was charged with raping one of the soldiers in his squad which made him feel like everything was against him. This made him develop distrust and feel it was him against the world. The time he thought he was going to get help neither one of the counselors understood him and said that he was rambling out of anger about his career and to just let them chapter me. They even pulled his medical evaluation board (MEB) packet while the physical evaluation board liaison officer (PEBLO) agreed that since no one knew what he was saying to just let them put me out. This followed him into the civilian world where at one time he couldn't keep a job he had stressed and pulled a weapon out on one of his jobs because of a flash back. He had numerous arrest and wasn't receiving any help. He attempted suicide numerous times but he failed. He doesn't expect for anyone to even care because people like him never really get the help they need and everyone just waits for them to take their own lives, but these are just some of the reasons why he feels like he deserves his retirement. He made it to Staff Sergeant (SSG) in four years and the things that he went through bothered him but nobody wanted to acknowledge it and help me. He was a 22 year old SSG but everyone was against him. This is why he's been married two years and has been on the brink of divorce four times. b. The applicant provides a character reference letter from X__ X__, who states he knows the applicant and served with him from April 2006 to present. He states the applicant redeployed with 7th Chemical Company in 2007, he underwent surgery for and infection he got while deployed to Iraq over the years he served in the US Army. He states the applicant has done some uncontrollable things since he has known him. On a number of occasions he had gone to the applicant’s home and he was sitting on the couch with guns in both hands saying things like “no one loves me, but my guns.” One night he was sitting on his truck with both guns in his hands. Sometimes he didn’t talk as himself; he said some of the craziest things. Following days of uncontrollable events he acted like nothing ever happened. In September 2009, he and the applicant were driving down the highway and a guy cut him off, once they arrived at the stop light the applicant jumped out of the car and ran to the guys’ car whom had cut him off, and was trying to pull him out of the car. I jumped out behind him trying to get him back into the car but he was just not himself. Later that night he went to check on the applicant to see how he was doing, once again he acted like nothing ever happened. In October 2009, the applicant was at work when his cell phone went missing, he questioned co-workers about the phone no one seems to care about his phone being missing, so the applicant goes to his truck and comes back into the building with a gun saying, “no one leaving here until I get my phone back”. Later after he was arrested, he tried to talk with him at the time to see what’s going on with him, the applicant tells him things that he seen and went through while he deployed. At times the applicant wasn’t himself since his deployments and discharge from the US Army. Sometimes he thought he might hurt himself, so some nights he would stay at his house with him to make sure he didn’t do anything crazy to himself or others. He states the applicant also had trouble sleeping at night, he’s up for days at a time. 4. Review of the applicant’s records shows: a. He enlisted in the RA on 27 July 2001. b. He served in Qatar from 25 January to 26 November 2003 and in Kuwait from 27 December 2004 to 22 November 2005. He was promoted to SSG (E-6) on 1 August 2005. c. On 11 December 2006, he accepted non-judicial punishment (NJP) for wrongfully carrying a loaded firearm in his vehicle at Fort Polk, LA. He was reduced to sergeant/pay grade E-5. d. He deployed to Kuwait on 4 June 2007. e. On 29 August 2007, he accepted NJP for wrongfully communicating a threat to do violence to an noncommissioned officer (NCO) and being derelict in the performance of his duties by negligently failing to stay awake while pulling rear security while conducting a sustainment mission. He was reduced to specialist/pay grade E-4. f. On 11 February 2008, the applicant was notified by his commander that action was being initiated to separate him under the provisions of (UP) Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 14, for misconduct based on commission of a serious offense with an under other than honorable conditions (UOTHC) character of service. a. The reason for the proposed action were the applicant wrongfully tried to enter Fort Polk with a loaded weapon on 26 August 2006 and he wrongfully communicated a threat to an NCO on 17 July 2007. The commander advised the applicant of his right to: * consult with counsel * request a hearing before an administrative separation board (ASB) * submit statements in his own behalf * be represented by counsel * waive any of these rights * withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge b. The commander noted that the applicant had completed a medical examination and a mental status evaluation. g. On 12 February 2008, that applicant acknowledged he had been advised by counsel of the basis for the contemplated separation action for misconduct (commission of a serious offense). He also acknowledged he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He further acknowledged that as a result of a discharge UOTHC he might be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life. He did not submit statements in his own behalf. He requested: * consideration of his case by an ASB * personal appearance before the ASB * consulting counsel and representation by military counsel or civilian counsel at no expense to the Government h. On 13 February 2008, the commander recommended the applicant be separated for commission of a serious offense with issuance of an UOTHC discharge. He noted that rehabilitative efforts had been tried and failed, and additional efforts would not be deemed appropriate. He recommended the rehabilitative transfer requirement be waived. i. On 19 February 2008, the senior defense counsel submitted a memorandum on behalf of the applicant. He requested the separation action be discontinued, the applicant receive an immediate rehabilitative transfer, and that he be sent to anger management. j. The chain of command recommended approval of the applicant’s separation UP AR 635-200, chapter 14, and that his service be characterized as UOTHC. k. On 2 April 2008, the applicant and his counsel appeared before an ASB. a. A review of the ASB proceedings, in pertinent part, shows: * the matter of a rehabilitative transfer was made known to the board * a witness testified that the applicant “was moved t a new platoon and given a fresh start” b. In response to questions by: * his counsel, he stated, “I have never been studied for PTSD.” * the Government, he stated, “I haven’t had any testing for PTSD. I have been to an exam; I stopped the exam because I was afraid I would be terminated from service.” * ASB members, he stated, ‘I feel I should be retained in the Army” and “Anger management is my way to regain what I once had” c. A review of the ASB proceedings failed to reveal evidence that the applicant was found unqualified for military service based on any unfitting medical condition(s). d. The board found the applicant had committed a serious offense UP AR 635-200, paragraph 14-12c. The board recommended his separation from military service with the issuance of a general discharge, under honorable conditions. e. The applicant, his senior defense counsel, and his former first sergeant submitted letters to the discharge authority requesting retention of the applicant in the service and a rehabilitative transfer. l. On 28 April 2008, the separation authority approved the recommendation for Discharge of the applicant UP AR 635-200, paragraph 14-12c, with a general, under honorable conditions discharge. m. The applicant’s DD Form 214 shows he entered active duty this period on 27 July 2001 and he was discharged, on 29 April 2008, UP AR 635-200, paragraph 14-12c, based on misconduct (serious offense) with service characterized as under honorable conditions (general). He had completed 6 years, 9 months, and 3 days of total active service during this period. n. The applicant submitted an application to the Army Discharge Review Board (ADRB) for upgrade of his discharge. On 27 May 2009, the ADRB determined that the reason for his discharge and character of his service were both proper and equitable. Accordingly, the ADRB denied the relief requested by the applicant. o. On November 2011, the Army Board for Correction of Military Records (ABCMR) denied the applicant request for upgrade of his discharge. p. On 5 January 2017, the ABCMR reconsidered the applicant’s request and determined that the evidence presented did not demonstrate the existence of probable error or injustice. The Board denied his request. 5. Although DoD acknowledges that some Soldiers who were administratively discharged UOTHC may have had an undiagnosed condition of PTSD at the time of their discharge, it is presumed that they were properly discharged based upon the evidence that was available at the time. Conditions documented in the record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time f discharge. In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge; those conditions will be considered potential mitigating factors in the misconduct that caused the UOTHC characterization of service. Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of UOTHC. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTS -related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a like cause of premeditated misconduct. Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. 6. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 deals with separation for various types of misconduct. Paragraph 14-12c provides for the separation of a Soldier by reason of commission of a serious offense. The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of chapter 14. 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. Based upon the prior medical advisory’s opinion stating there was no evidence that the applicant failed to meet medical retention standards and a lack of medical evidence to rebut those findings, as well as the misconduct which led to the applicant’s separation involving violent behavior towards others, the Board concluded no relief was warranted. 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. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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 provides that 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. A characterization of under honorable conditions may be issued only when the reason for separation specifically allows such characterization. c. Paragraph 14 of this regulation establishes 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. Action will be taken to separate a Soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him/her as a satisfactory Soldier, further effort is unlikely to succeed or rehabilitation is impracticable or the Soldier is not amenable to rehabilitation (as indicated by the medical or personal history record). d. Paragraph 14-12c states that Soldiers are subject to action per this section for the commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized the same or a closely related offense under the manual for courts-martial. 2. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (statutory or directive), reasons for separating Soldiers from active duty, and the SPD code to be entered on the DD Form 214 (Certificate of Release or Discharge from Active Duty). It identifies SPD code JKQ as the appropriate code to assign to enlisted Soldiers discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, misconduct (Serious Offense). 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), sets forth policies, responsibilities, and procedures in determining whether a Soldier is unfit because of physical disability to reasonable perform the duties of his or her office, grade, rank, or rating. In each case, it is necessary to compare the nature and degree of physical disability present with t e requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Separation by reason of disability requires processing through Integrated Disability Evaluations System 4. 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) AR20170015981 7 1