ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 17 May 2019 DOCKET NUMBER: AR20180001101 APPLICANT REQUEST THROUGH COUNSEL: an upgrade of his general discharge (GD) to an honorable discharge (HD). COUNSEL'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Counsel’s 13-page Brief * Applicant’s personal statement * Department of Veterans Affairs (VA) Documents * Medical Documents * Bar to Reenlistment Certificate * Secretary of Defense Memorandum (2014) * Kurta Memorandum (2017) 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. In a 13-page brief, counsel states in part: a. The applicant’s discharge was too harsh because the disciplinary infractions leading to his discharge were most likely the result of undiagnosed post-traumatic stress disorder (PTSD) as well as immaturity. The discharge is inequitable in view of a change in policy and in view of the applicant’s character of service. The applicant served on active duty from 19 May 1987 to 30 November 1988. The applicant applied for a review of discharge on 24 April 1989; however, it was denied. The applicant suffers from PTSD caused by experiences during his period of service. The VA has established the applicant’s PTSD is directly related to military service. b. The applicant enlisted in the Army at the age of 18. According to the applicant he joined because he had family members who served and he had a family to support. During the applicant’s service he attempted suicide and was hospitalized due to his undiagnosed and untreated PTSD. After the applicant’s suicide attempt and when experiencing psychiatric problems, he was disciplined and discharged for unsatisfactory performance. The applicant contemplated suicide at least four times, once while in service and the others after his discharge. Depression or descriptions of depressed behavior have been included in virtually all of his diagnoses. The applicant is unable to maintain gainful work activity. c. Counsel goes on the explain how the Hagel and Kurta Memorandums require the ABCMR to liberally consider the applicant request for an upgrade of his discharge. He states pursuant to the memorandums, the psychological and psychiatric report confirming the applicant’s diagnosis of PTSD must be considered. The applicant was suffering from a psychiatric condition which affected his behavior. It is critical to note there were no disciplinary incident reports in the applicant’s service record until the end of his service. The applicant was diagnosed with an adjustment disorder with depressed mood while in service. There was no condition noted at the time of the applicant’s enlistment. The applicant’s mental health began to deteriorate during his military service and he continues to suffer from mental health problems. d. Since the applicant’s release from the military, he has repeatedly been diagnosed with major depression, consistent with his diagnosis of depressed mood, during service. The applicant received nonjudicial punishment (NJP) for failing to appear for line duty. However, the applicant would have a hard time sleeping due to “blanket parties” and his ongoing fear they would occur again. As a result, he would get little sleep and would find it extremely difficult to make it to line duty at the required time. The applicant explained he was frequently late to formations because he was having trouble sleeping. He received NJP for posting a sign on his door containing threats and slander for others to see. At this point the applicant was emotionally exhausted and apparently attempting to fend off Soldiers who were constantly hazing him. e. The applicant was considered unsuitable for the Army and given a Bar to Reenlistment Certificate. The reasons given for the bar were unsatisfactory performance as well as an arrest for smuggling drugs across the border. When the applicant attempted to gain access into the U.S. at the El Juarez border entrance, after a short trip to Mexico, a secondary search was conducted and the officers found less than a gram of marijuana in the applicant’s ashtray. He was arrested questioned, and thereafter released to base. Although the applicant continues to suffer from mental health problems, he has had no arrests or problems with the law since his released from service in 1988. He has made efforts to stay away from alcohol and drugs. He has engaged in positive activities in an effort to deal with his mental health problems. He is seeing a therapist for his PTSD and is enrolling in self-help programs through the VA’s medical centers. f. The applicant served our country for almost two years before being considered unsuitable for the Army. Despite his misconduct, it is inequitable that he received a GD that reflects unsatisfactory performance. Arguably, being the victim of traumatizing physical and emotional abuse is a fact that mitigates his discharge. In consideration of the applicant’s experiences in service that correlate with the onset of is mental health condition, combined with his youth and immaturity at the time of his misconduct and continued suffering from mental health problems during and after service, an injustice occurred when the applicant was given a GD. The applicant’s GD precludes him from obtaining benefits which he would be otherwise entitled to. The applicant was very distraught when he learned he could not obtain a specialty license plate for disabled veterans. For the reasons stated above, the applicant petitions that the ABCMR review the evidence and arguments presented, and change the character of his discharge. Counsel’s complete brief is available for the Board’s review. 3. Counsel provides a four-page statement from the applicant. He states, in part: a. He received a GD for unsatisfactory performance. He has been suffering from mental health problems ever since my military service. He had no psychological problems before he entered the military. He joined the Army with the idea that he wanted it to be his career. The Army barred him from reenlisting and he was devastated. Before he left his family to go to Fort Knox, KY he was looking forward to wearing the Army uniform and finally becoming a Solider. He just wanted to take care of his family and better himself. While in the military he started to have feelings of not getting along; not fitting in, and that others did not like him. He started to feel depressed, on edge and angry. He remembers feeling depressed even during basic training and it just got worse given what he experienced. b. The first month of service was disturbing. The drill sergeants would abruptly wake up him and the others by yelling and screaming and he was unprepared for it. The service officers consistently did this in the barracks. The hazing began with him being verbally abused from drill sergeants and other members of the Army. He was the recipient of a "Blanket Party" abuse where fellow soldiers punched him under the blankets. While waiting in single file line, naked, waiting for the shower, the other Soldiers looked down on him because he did not participate in childish shower games. The other soldiers called him homophobic and singled him out because of this. The "blanket party" was some kind of sick game, which consists of other Soldiers putting you under the blankets, everyone beating him, and then everyone scatters leaving him to wonder who did it. It was almost like a game. After this incident he lost sleep and was constantly in fear that a similar incident could happen again. He would sit in bed and ask himself what was he doing with his life and was the Army the right thing for him. c. In the Army you are taught to "suck it up" and to never complain. He did not want others to know he was through a rough time, so he would often try and hide his true feelings. He considered going absent without leave because he did not know if he was going to make it. He spoke to one person about this issue and he was told "it's only hazing everything will be ok." Constant fear of the Drill Sergeants and other higher officials bursting into the room resulted in him getting little to no sleep at night. He only lashed out or got mad because he had been mentally abused. In addition to all the abuse and hazing, when he was at Fort Bliss for training he was involved in near-death experiences with the turret. The turret rotated quickly, and he barely had a chance to get his head out of the way, he was almost decapitated. Although this was a training exercise, it felt like a real world emergency. He would often have trouble falling asleep, but once he was able to fall asleep, he would wake up only to be late for formations. He had trouble waking up for service activities because he was sleep deprived from the abusive conduct at night. d. While in the Army he and his wife lived off base. During this time a non- commissioned officer (NCO) would continually come to his house. The NCO was supposed to check on your family and make sure all their needs were met. The NCO started making regular visits to his wife and he suspected the NCO was attempting to sleep with his wife. He had fierce debates with other military members about whether or not his wife was sleeping with the NCO. He approached the NCO and asked him about the relationship with his wife. There was also an incident where an NCO in his unit threatened him and his military career. After he was threatened, he kept his mouth shut. This incident put a strain on his marriage and there were times he was verbally and physically abusive. He was removed from his house and taken into the barracks. His anger and depression put a strain on his marriage. After service, he and his wife were divorced due to these problems. e. He attempted to kill himself while in the Army. He never attempted to commit suicide nor was he ever hospitalized prior to service. When he arrived at Fort Bliss Texas, his nerves were "shot" and he was constantly jumpy and always looking over his shoulder. It got to a point where he didn't know if he was going to make it through training. His suicide attempt was after he got to his first duty station. In his unit they trained a lot. This was during the Cold War Era so tensions where pretty high between the U.S and Russia. He ended up in the hospital after the suicide attempt for a week and then was returned to duty. He was discharged a few months later for unsatisfactory performance. The other Soldiers did not feel as if he was pulling his weight. It was at this point he was informed he would be discharged because of his problems. At this time he felt bad and began to sink into depression. He didn’t understand the full extent of his mental health. He had to learn himself all over again and he had to learn his triggers. He was learning more about himself every day. f. During his military service he was arrested at the border after a weekend in Mexico with my fellow Soldiers. It happened when he tried to get back into the U.S. The officers searched his car and found a gram or so of marijuana. One of the fellow Soldiers left it in his car ashtray. He was not smoking any marijuana during that time. He was detained for about 4 hours and eventually allowed to return to base. He admits this was wrong, he was just unaware a Soldier had left the marijuana in his car. Drugs have never been a part of him or his family. He didn't fully understand what was happening to him mentally and didn't understand why he was doing what he was doing. He acted without thinking and was emotionally broken down from some of the experiences he had in the Army. Currently, given his discharge status, he is prevented from being issued a licensed plate symbolizing his service to this country. It was pretty devastating to hear he was not eligible to obtain a military license plate despite his service and disability. It feels like he is stuck with some sort of stigma. If he didn't have a less than honorable discharge, he would be able to get the military license plate. He don’t understand why the Army said he was unfit and performed unsatisfactory work. They knew he was being harassed and hazed. g. After he got out of the military, he experienced extreme sleeping problems and his relationship with his family deteriorated. He would have crying spells and would wake up sweating. He remembers telling other veterans about being hazed, but the other soldiers told him that it was no longer allowed. Not long after he was discharged he started seeing someone for his problems. He couldn't hold a job. Before the military, he had worked many fast food and retail jobs, but these simple jobs seemed almost impossible after he returned from the military. Once he returned home, he attempted suicide four times. There are times when he constantly look out windows thinking someone is out to get him. His social life since the military has diminished. His relationship with his kids has been strained since my service in the military. Before the military he had several close friends, but after the military it was difficult to maintain a relationship with these people because they are turned off by his attitude. Some of his old friends call him names. When he speaks to a fellow veterans he is ashamed that he was only able to serve for a short time. When other veterans hear how short his service was, they often criticize him and make him feel bad. He thought all veterans were on the same team. h. He attempted suicide in December 2015, when he swallowed two bottles of pills. Other than these mental issues, he never got into trouble or had any issues with the law after service. He has major anxiety and depression. Minor things trigger his anxiety. He often have nightmares that keep him up for most of the night. He wakes up in the middle of the night drenched in sweat and not able to go back to sleep. He does not like being around people he is unfamiliar with. He does not trust anymore. When he’s at home he feels like he’s on guard. He is very paranoid and feels the need to protect himself. He rarely leaves home and his quality of life has been very poor since he left the military. His medication does not to fully relieve his anxiety and depression. He no longer have the desire to do the things he used to love and this has affected his daily life and has caused him to be where he is now. 3. The applicant accepted nonjudicial punishment on the following occasions: * 31 March 1988, for failure to be at appointed place of duty * 8 July 1988, for posting written threats 4. On 8 July 1988, the applicant was issued a Bar to Reenlistment Certificate. It was noted he was unsuitable for the Army. He had been served numerous letters of counseling for unsatisfactory performance, received NJP, and was arrested by the U.S. Customs Police for smuggling drugs across the border. He attempted suicide and was enrolled in the Mental Hygiene Program. He could not conform to military standards and his conduct would not be tolerated. 5. On 12 August 1988, his commander informed the applicant he was initiating action to separate him for unsatisfactory performance under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 13-2. His commander stated the reason for the proposed action was that the applicant had received numerous counseling statements for unsatisfactory performance and the applicant was very disruptive to the unit and should be discharged from service. The commander informed him of his rights. 6. On 20 October 1988, an authorized official approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, and directed the issuance of a GD Certificate. 7. On 30 November 1986, the applicant was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 6 months, and 12 days of net active service this period. 8. On 30 September 1992, the ABCMR denied the applicant’s request for a change of his reentry code. 9. On 21 February 2018, the ABCMR obtained an advisory opinion from a Clinical Psychologist with Army Review Boards Agency (ARBA), who states, in part, the applicant has a mitigating Behavioral Health condition (PTSD) for the Unsatisfactory Performance which led to his discharge from the Army. As PTSD is associated with impaired duty performance, difficulty with authority figures, avoidance behavior and use of illicit substances to self-medicate symptoms, there is a nexus between his PTSD and the misbehaviors which led to his Under Honorable Conditions discharge from the Army. A copy of the complete medical advisory was provided to the Board for their review and consideration. 10. On 27 February 2018, the applicant was provided a copy of the advisory opinion for comment or rebuttal. Counsel responded to the advisory on 28 March 218, and agrees with the opinion and request ABCMR adopt and incorporate the opinion that the applicant’s PTSD is a mitigating factor in the misconduct which resulted in his discharge status. 11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13, in effect at the time, established policy and provided procedures and guidance for eliminating enlisted personnel for separation due to unsatisfactory performance. Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions. 12. In reaching its determination, the Board can consider the applicant's petition, his statements, and the medical advisory, in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: After reviewing the application and all supporting evidence, the Board found that full relief was warranted. 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 the Medical Advisory and found the statement and evidence of PTSD to be compelling. The Board agreed that the applicant’s case warrants clemency in that the applicant’s PTSD is a mitigating factor in the misconduct that resulted in the applicant’s discharge characterization. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for 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 “Honorable,” the Regulatory Authority as “AR 635-200, paragraph 5-3,” the Narrative Reason as “Secretarial Authority,” and the Separation Designator (SPD) as “JFF.” 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 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel. a. Chapter 13 of this regulation provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely. Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions. b. Paragraph 3-7a provides that an HD 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. 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 UOTHC 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 (TBI); 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. 5. 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. 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. 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) AR20180001101 2 1