ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF BOARD DATE: 21 May 2019 DOCKET NUMBER: AR20170017375 APPLICANT REQUESTS: * Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his rank/grade as sergeant (SGT)/E-5 * Correction of the dates he was reported absent without leave (AWOL) to reflect 11 January 1996 to 6 March 1996 * Upgrade of his under other than honorable discharge due to suffering from post-traumatic stress disorder (PTSD) * Personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 the Army has him AWOL from 24 May 1995 to 8 January 1996. He was actually AWOL from 11 January 1996 to 6 March 1996. The Army also has him as an E-1. He was an E-5. Additionally, he did not know anything about PTSD when he served, but his disorder caused him to use drugs. He is currently in treatment for his illness and his addiction caused him to damage his military career. If it were not for PTSD, he would have continued serving in the Army because he loved it. He still loves it dearly. He also states that he did not know he had PTSD, bipolar disorder, and depression. He is currently receiving treatment on how to manage his illnesses from things he witnessed in Somalia, Africa, and his stepfather’s murder, when he was younger. 3. A review of his service records shows: a. His DD Form 4 (Enlistment/Reenlistment Document) reflects that he enlisted in the Regular Army (RA) on 13 July 1982. He was advanced to specialist four/E-4 on 21 February 1984. b. His DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects that on 12 July 1985, he was discharged from active duty under the provisions of AR 635-200, with and honorable characterization of service. His narrative reason for separation was expiration term of service. He had 3 years of active duty service. c. His DD Forms 4 reflect he enlisted in the RA on 16 November 1990 and reenlisted on 13 May 1994. d. He was reported AWOL on 24 May 1995, and dropped from rolls (DFR) on 23 June 1995. e. His DD Form 458 (Charge Sheet) indicates court marital charges were preferred on 28 June 1995. He was charged with two specification of AWOL from 8 May 1995 to 10 May 1995 and from 24 May 1995 to an unknown date. His DD Form 616 (Report of Return of Absentee) reflects that the applicant returned to military control on 8 January 1996. f. His separation processing paperwork is not available for review with this case. However, his service record contains a DD Form 214 that show he was discharged on 20 March 1996, under the provisions of AR 635-200, Chapter 10 with an under other than honorable conditions characterization of service. He completed 4 years, 8 months and 6 days of active service. Only 2 days of lost time from 8 May 1995 to 9 May 1995 are visible on the DD Form 214. It further shows in: * Blocks 4a (Grade, Rate or Rank) and 4b (Pay Grade) PV1 and E-1 * Block 12h (Effective Date of Pay Grade), February 1996 * Block 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized), * Army Commendation Medal * Army Achievement Medal * Good Conduct Medal (3rd Award) * Expert Marksmanship Badge with Rifle Bar (M16) * Expert Marksmanship Badge with Hand Grenade Bar * Army Service Ribbon * Overseas Service Ribbon * Noncommissioned Officer Professional Development Ribbon * Block 18 (Remarks) reflects continuous honorable service from 29 November 1990 to 12 May 1994 * Block 29 (Dates of Time Lost During This Period Under Title 10, U.S. Code, section 972), 960508 to 950509 4. On 12 April 2018, Case Management Division (CMD) notified the applicant that he must provide a copy of the medical documents that support his issue of PTSD. He was given until 11 May 2018 to respond. The applicant did not respond. 5. On 12 April 2018, 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 12 April 2018, the Army Review Boards Agency medical advisor/ psychologist reviewed the applicant's case and rendered an advisory opinion and stated: a. On 6 October 2017 said the applicant had a prior diagnosis of PTSD and he believed a "pretty good job was done" with his treatment for it. On 4 October 2017, he had obtained score of 71 on a PCL-5, which is surprisingly high for somebody describing a good job being done with his treatment two days later on 6 October 2017. A note on 11 September 2017 clarified that the applicant has Bipolar II Disorder. Outpatient records also noted homelessness in September 2017. A complicating feature of the applicant's case is that he is HIV positive, and the connection between the HIV diagnosis and his continued drug use about which he is not always forthright, as when he told a provider he had only used cocaine once and his depressions is not well examined in the available records. b. The available record made it impossible to his mental status when he was on active duty. The evidence provided PTSD is extremely weak, even though the VA has used the diagnosis, no spelling out of how the applicant met the diagnostic criteria for PTSD. The evidence for Bipolar II Disorder and recurrent depressions is indisputable. The policy of Liberal Consideration entitles the applicant to mitigation, even though weight of available evidence does not support him having PTSD. Nevertheless, it is highly likely he had at least the beginning of an affective disorder during his service that has been severe enough to bring many of his life hopes to ruin believe his Affective Disorder also supports mitigation of his misconduct. c. It is unknown if the behavioral health conditions were present at the time of misconduct. d. A review of the available documentation found sufficient evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. e. Based on the information available for review at the time, the applicant had mitigating medical or behavioral health condition(s) for the offenses which led to his separation from the Army. 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, AR 15-185, applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 8. By regulation AR 635-200, paragraph 1-14 (reduction in grade), when a- soldier is discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade. 9. By regulation, AR 635-200, an individual who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. An Under Other Than Honorable Discharge Certificate will normally be furnished an individual who is discharged for the good of the service. 10. 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: 1. After reviewing the application and all supporting documents, the Board found the relief was warranted. The applicant’s contentions and the medical advisory opinion were carefully considered. The Board agreed administratively regularity allows for the denial of his request to change the dates of his AWOL, as he did not provided any evidence to show he was present for duty on the days he contends he was not absent. The advisory official noted it is highly likely he had the beginning stages of a behavioral-health condition that may have mitigated his misconduct. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record. The Board agreed to show clemency and upgrade the characterization of service to general based upon the medical information provided by the advisory official. However, the Board concluded his rank should not be reinstated as he was justly reduced to E-1 for requesting a chapter 10, and there is no clear evidence he had a reported behavioral-health condition during his period of service nor any service in Somalia. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, 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 X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as general, under honorable conditions. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to changing his lost-time dates, restoration of his rank to SGT/E-5, and a personal appearance. 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. 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 (AR) 635-200 (Personnel Separation – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-14 (reduction in grade), when a- soldier is discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade. b. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. 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. Paragraph 3-7b (General Discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. Chapter 10 of this regulation states an individual who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. An under other than honorable discharge certificate normally is appropriate for a member who is discharged for the good of the Service. However, the separation authority may direct a General Discharge Certificate, if such is merited by the member's overall record during the current enlistment. 3. AR 15-185, Army Board of Corrections of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. c. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 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. Army Regulation (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170017375 6 1