ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 26 April 2019 DOCKET NUMBER: AR20180001019 APPLICANT REQUESTS: his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable characterization of service or a general, under honorable conditions characterization of service. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 2-1 (Personnel Qualification) * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 25 February 1984 * DA Form 1506 (Statement of Service – For Computation of Length of Service for Pay Purposes), dated 17 March 1993 * Department of the Army (DA), Certificate of Achievement dated 8 July 1994 * DA Form 4980, Certificate of Training, dated 23 September 1994 * Permanent Orders 25-1, Army Commendation Medal * DA Form 4980-14 (Army Commendation Medal Certificate) dated 21 July 1994 * DA, Certificate of Achievement dated 23 November 1994 * DD Form 214 for the period ending 18 June 1997 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: a. He enlisted in the Army in 1983 and served until 1997, which is almost 14 years of active service. He requests his 1997 DD Form 214 be upgraded. He says his current characterization of service is based on one incident. He was not offered any rehabilitation. When he served in Panama he experienced a significant amount of stress and anxiety that was caused by situations and the environment in Panama as well as with his unit leadership. He struggled and constantly requested assistance. He was threatened with discharge due to his failure to adapt to the military lifestyle. He suffered in service and suffers today with anxiety and post-traumatic stress disorder (PTSD) which is untreated. He also developed fibromyalgia. He suffers in silence and his inexplicable pain affects his ability to work and to cope. b. He claims he had a falling out with an officer that unfortunately snowballed into his discharge with his chain of command not taking into consideration his more than 14 years of service or his Army Good Conduct Medal. At the time he was a specialist/pay grade E-4 and needed help. He claims he had no other adverse actions in his record besides the one isolated incident. His DD Form 214 supports his contention, reflecting honorable service from 16 August 1991 to 21 December 1994. However, his remaining 2 years were somehow labeled as "other than honorable" making everything he worked for futile. He has no fruits of his labor which he finds embarrassing and humiliating for himself and his family. He humbly asks the Board for favorable consideration. c. He concludes by saying he thought he would receive a general, under honorable conditions discharge 6 months after he received his UOTHC discharge. He never sought Department of Veterans Affairs (VA) benefits or used his DD Form 214. He recently requested copies of his military records and was shocked to see his characterization of service had not been upgraded. He is trying to get treatment for his medical conditions through the VA, but his current characterization of service prevents him from getting the help he needs. 3. With prior enlisted service in the U.S. Army National Guard, the applicant enlisted in the Regular Army on 16 August 1991. He served through his first Regular Army enlistment and reenlisted on or about 22 December 1994. 4. On 12 May 1997, court-martial charges were preferred against the applicant for the following specifications: * on diverse occasions between on or about October 1996 and on or about January 1997, wrongfully use marijuana which is a controlled substance * on diverse occasions between on or about 1 September 1996 and on or about 31 January 1997, wrongfully distribute some unknown amount of marijuana to three individuals 5. On 16 May 1997 the applicant consulted with civilian defense counsel. He was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or dishonorable discharge. Subsequent to receiving counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 (Discharge for the Good of the Service), Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). He elected to submit statements in his own behalf and acknowledged/understood: * he had not been subjected to any coercion whatsoever by any person * made the request of his own free will * acknowledged that he was guilty of the wrongful use and distribution of marijuana * he stated he did not desire rehabilitation or perform further military service * if his discharge request was accepted, he could be discharged UOTHC and reduced to the lowest enlisted rank of pay grade E-1 * as a result of the issuance of a UOTHC characterization of service he could be deprived of many or all Army benefits * he could be ineligible for many or all benefits administered by the Veterans Administration * he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life * he understood there was no automatic upgrading nor review by any government agency of an UOTHC discharge and that he would have to apply to the Army Discharge Review Board or the ABCMR if he wished to have his dischargedd reviewed (emphasis added) * he did desire a separation physical examination and a mental evaluation 6. The applicant submitted a separate statement with his request wherein he apologized for his actions and offered no excuses. He cited his spouse had a serious medical condition that required the amputation of some of her toes causing the family to be under an extreme amount of stress. He concluded that he had served almost 12 years of cumulative service in the U.S. Armed Forces and based on his length of service he asked for leniency and issuance of a General Discharge Certificate. 7. A Staff Judge Advocate officer prepared a legal brief for the separation approval authority. Within his discussion, he stated the applicant was offered nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for illegal use of marijuana. The applicant demanded a court-martial. He had distributed and smoked marijuana with three individuals and the quantity he distributed was incident to personal use. He was married with two children and his wife recently had nine toes amputated. His chain of command recommended approving his request for discharge under the provisions of chapter 10, Army Regulation 635-200. 8. On 4 June 1997, the separation authority approved the applicant's request for discharge, directed reduction in grade to private (PV1)/E-1, as well as the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 9. On 18 June 1997, he was discharged accordingly. His DD Form 214 shows he was discharged under other than honorable conditions. He completed 5 years, 10 months and 3 days of net active service. His rank/grade was PV1/E-1 and his date of rank was 4 June 1997. The reason and authority was Chapter 10, Army Regulation 635-200. The separation code is shown as "KFS" [Discharge for the good of the service]. 10. The applicant’s end of service separation physical and mental status examination paperwork are not filed in his official military personnel file. 11. There is no evidence the applicant applied to the Army Discharge Review Board within its statutory limitations. 12. In the processing of this case, the staff of the Army Review Boards Agency mailed the applicant a letter requesting he provide medical evidence to support his PTSD claim and how his PSTD might have mitigated his misconduct. The applicant responded by submitting a personal statement and a character reference statement. He provided no medical evidence. a. In his personal statement he stated his duty in Panama left him dealing with a variety of issues mainly due to past events which he is not allowed to disclose. From his service he suffers from PTSD, depression and anxiety. He did not adjust to life post- service because his “Classified Non-disclosure Agreement keeps [him] unable to get help from counselors.” He does not have an official diagnosis of PTSD (because he feels he cannot disclose his military information). He finds entering institutional buildings such as hospitals, professional offices and courts very difficult. He describes how he is hyper vigilant and is always aware of his surroundings. He also struggles with disrupted sleep often waking full of sweat and a palpitating heart. He normally is unable to return to sleep after a wakeful episode. b. His significant other states she and the applicant have been together for 3 years and from her experience she now understands how PTSD can effect someone. She states, “When he talks about his service time, he does so with pain in his eyes. A wall comes up, conversation is diverted.” She also is a witness to his depression which also effects his employment status. He also does not want to leave the house because of his anxiety. They don’t participate in July 4th holiday activates because of the fireworks. He does not like crowds so they spend time at home. She must accompany him to appointments because he despises going alone. He is vigilant checking his back, looking for exits, and generally being in an anxious state. He also exhibits avoidant behaviors because he cannot discuss his military experiences. She attests to the fact that he awakens from his sleep often troubled and sweating and then seeks to understand his surroundings. She concludes by stating that meeting and greeting new people is very difficult too. They have a very small social circle which she attributes to his (mental) health. 13. In support of his application, he provides the following pertinent evidence: a. a DD Form 214 for the period ending 25 February 1984 showing he was honorably released from active duty for training while in a Reserve Component status. b. a Certificate of Training, dated 8 July 1994, showing he exhibited a high degree of dedication and technical skills resulting in the delivery of a fully mission capable vessel. c. Certificate of Achievement, dated 23 November 1994, showing he was the distinguished graduate for the Watercraft Operator Certification Course – 88K20, Class Number 1-95. d. Permanent Orders 21-1, dated 21 July 1994, awarding him the Army Commendation Medal for his period of service from 2 January 1992 to 1 September 1994. Within the citation he highlighted the phrase, "Dedication to duty." e. DD Form 4, dated 22 December 1994, showing he reenlisted in the Regular Army. f. Classified Information Nondisclosure Agreement, dated 20 June 1996. g. A copy of his DA Form 2-1 showing he received the Army Good Conduct Medal (1st Award) in 1994 upon successful completion of 3 years of active federal service, and h. A copy of his DD Form 214 wherein he highlight receipt of the Army Good Conduct Medal, his continuous honorable service from 16 August 1991 to 21 December 1994 and the fact he completed his first full term of service. 14. On 22 March 2018, 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 all medical conditions at the time of his service and there was no indication for physical disability evaluation system processing. Nor is there available evidence supporting a change to his narrative reason for separation or his SPD code. A review of the VA Joint Legacy Viewer (medical records) failed to reveal any records pertaining to the applicant such as Compensation & Pension examinations. Overall, his name is within the VA Joint Legacy Viewer database. A copy of the complete medical advisory was provided to the Board for their review and consideration. 15. The applicant was provided a copy of the medical advisory on 7 May 2018. He did not respond. 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 criteria (PTSD), detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable condition 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 applicants' service. 17. 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 on 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. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions, medical concerns, letters of support, and the medical advisory were carefully considered. The medical advisory official determined there were no mitigating factors to his misconduct and subsequent separation. He was provided the opportunity to rebut the advisory; however, he did not respond. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 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, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-14, when a Soldier is to be discharged under other than honorable conditions; the separation authority will direct an immediate reduction to the lowest enlisted grade. b. Paragraph 3-7a stated an honorable discharge was given when the quality of the Soldier’s service had generally met standards of acceptable conduct and duty performance. c. Paragraph 3-7b stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. Chapter 5, Section II (Secretarial Authority) provided for the separation of enlisted personnel for the convenience of the government is the prerogative of the Secretary of the Army. e. Chapter 10 provided a member who had committed an offense or offenses for which the authorized punishment includes a punitive discharge could submit a request for discharge, in lieu of trial by court-martial, at any time after the charges had been preferred. The Soldier's request was to include an acknowledgement that he/she understood the elements of the offense(s) and was guilty of the charge(s), or of a lesser-included offense. A discharge under other than honorable conditions was normally considered appropriate 3. Army Regulation 635-5-1 (Separation Program Designators (SPD)) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service and the separation program designator (SPD) codes to be used for the stated reasons. * SPD KFF is the code for use directed by the service secretary under the provisions of Army Regulation, Chapter 5, Section Il * SPD KFS is the code used by enlisted personnel separating under the provision of Army Regulation, Chapter 10 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 medical evaluation board 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. Situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability, but may be the basis for administrative separation if recurrent and causing interference with military duties. Paragraph 3-3 states Soldiers whose medical conditions fail retention standards are to be referred to a physical evaluation board (PEB) as defined in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). The PEB will make the determination of fitness or unfitness and then based on law a Soldier will be medically separated or medically retired. 5. Army Regulation 15-185 (ABCMR) 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180001019 2 1