ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 May 2019 DOCKET NUMBER: AR20170018216 APPLICANT REQUESTS: an upgrade of his general, under honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Excerpt of Department of Veterans Affairs (VA) Compensation & Pension (C&P) Exam 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 his general, under honorable conditions discharge needs to be changed to an honorable discharge. He further indicated he has been diagnosed with post-traumatic stress disorder (PTSD) which was related to the training accident that occurred during his service in Korea on 29 August 1994. 3. The applicant provides an excerpt of the VA C&P Exam detailing the 100% evaluation for PTSD based on a number of factors. The document further supports the overall evidentiary records shows the severity of his disability most closely approximates the criteria for 100% disability evaluation. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 24 November 1993. b. He served in Korea from 24 May 1994 to 23 May 1995. c. He received nonjudicial punishment on 30 May 1996 for wrongful use of marijuana. His punishment included reduction to private/E-1. a. d. On 4 June 1996, the applicant’s immediate commander notified the applicant of his intent to separate him under the provisions of Chapter 14, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for the commission of a serious offense (wrongful use of marijuana). e. On 4 June 1996, he acknowledged receipt of the notification of the separation action. f. On 5 June 1996, after consulting with legal counsel, he acknowledged: * the rights available to him and the effect of waiving said rights * he may encounter substantial prejudice in civilian life if a general discharge under other than honorable conditions is issued to him * he may apply to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading * he is ineligible to apply for enlistment in the Army for 2 years after discharge g. On 7 June 1996, consistent with the chain of command recommendations, the separation authority approved the discharge recommendation for immediate separation under the provisions of Chapter 14, AR 635-200, paragraph 14-12c for the commission of a serious offense. He would be issued a General Discharge Certificate. h. He was discharged from active duty on 14 June 1996 with a general, under honorable conditions (general) characterization of service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 6 months, and 21 days of active service. It also shows he was awarded or authorized: * Army Achievement Medal (2nd Award) * National Defense Service Medal * Army Service Ribbon * Overseas Service Ribbon * Sharpshooter Marksmanship Qualification Badge with Rifle Bar 5. On 30 January 2018, the Army Review Boards Agency clinical psychologist rendered an advisory opinion in the processing of this case. He opined: a. Limited review of VA records through Joint Legacy Viewer (JLV) showed a VA rating of 100%, but did not show psychiatric diagnosis on his VA problem list. He had no outpatient encounters for PTSD or any other psychiatric problem in JLV. b. Page 4 of the VA C&P Exam showed a 100% disability percentage for PTSD and alcohol use disorder severe in full remission effective 10 May 2016. There was no psychiatric diagnoses appearing in either the written records from the time of discharge or in JLV. Although the applicant was identified as a patient using VA and Department a. of Defense (DoD) medical resources, only VA information, encounters, and documents showed in the records, and the C&P exam note failed to appear in JLV. c. The available record does not reasonably support PTSD existed at the time of the applicant’s military service and behavioral health conditions were not present at the time of misconduct. d. There was no evidence of a diagnosed mental health condition at the time of his discharge or before. He may have delayed PTSD, as he denied symptoms consistent with PTSD at the time of his discharge. e. A review of the available documentation found insufficient evidence of a medical disability or condition which would support a change to the character or reason for the discharge in his case. Based on the information available for review at the time, the applicant did not have medical or behavioral health condition(s) for the offenses which led to his separation from the Army. 6. On 30 January 2018, the advisory opinion was forwarded to the applicant for acknowledgement and/or response. The applicant provided the following in his rebuttal: * Rebuttal Statement * VA Form 21-0781 (Statement in Support of Claim for Service Connection for PTSD) * Self-authored Statement (part 3E of VA Form 21-0781) * Witness Statement * Standard Form 600 (Chronological Record of Medical Care) 7. The applicant stated in his rebuttal: a. He is unable to provide additional training or personnel records from his time in the Army and provided the only medical documents he received upon request. He believes that if the Defense Personnel Records Information Retrieval System contained his training records, the records would clearly indicate a change in his behavior from the time of the accident. b. He was 18 years old at the time of the accident and only 20 upon discharge. He was uncertain how the military expected him to realize that he was suffering from PTSD and does not believe his leadership was trained to recognize the symptoms. To his knowledge, information on PTSD was not readily available then as it is today. c. The accident he was involved in was very serious and could have resulted in death. He does not believe that Soldiers or his leadership recognized that he would need help or they could personally provide the necessary help. He turned to alcohol to a. deal with thoughts of the accident and the alcohol abuse led to poor decisions in and out of uniform. d. Prior to the accident he was a good Soldier. He won awards for performance in change of command ceremonies and also competed in Soldier of the Month and Soldier of the Quarter competitions. His interest in participating in competitions dwindled after the accident and his behavior became questionable which led to him receiving an Article 15 for alcohol and marijuana abuse. He believes that was out of character for him. e. He further indicated that with lack of records to show his character of service prior to the accident, he could understand how easy it would be for the examiner to miss the PTSD symptoms having only met him once. His leadership did not even recognize the symptoms and they were with him daily. The change in behavior should speak to the fact that symptoms were present. f. The decision to deny the discharge upgrade would be further punishment for a lack of records and lack of quality in leadership. Both of those things were out of his control now and as an 18 year old Soldier. The intent of the appeal is not to blame others, but he does believe that actions that led to his discharge were as a result of not receiving the necessary treatment to recover from the accident. g. The attached VA Form 21-0781 included a detailed self-authored statement with information about the incident and a witness statement corroborating the applicant’s account of the incident. h. The Standard Form 600 noted the applicant arrived in an ambulance and was complaining of hip pain and suffered a right hip contusion. He was given light duty for 48 hours. 8. By regulation, members are subject to separation for commission of a serious offense. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized. 9. In reaching its determination, the Board can consider the applicants petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 1. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the misconduct, the discharge characterization already received, as well as the medical advisory’s finding that insufficient evidence of a medical disability or condition which would support a change to the character or reason for the 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. 1535874 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 – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. 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. b. 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. c. Chapter 14 -12c (Commission of a Serious Offense) of that regulation provides that members are subject to separation for commission of a serious offense. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized. 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; traumatic brain injury; 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 on those conditions or experiences. The guidance further describes evidence sources and criteria, and requires Boards to consider the 1. conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge. The veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct.