BOARD DATE: 28 May 2020 DOCKET NUMBER: AR20180003162 APPLICANT REQUESTS: upgrade of his general discharge under honorable conditions APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * two self-authored statements FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the ABCMR 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 had anger and depression after his deployment. He was later diagnosed with post-traumatic stress disorder (PTSD) after he was discharged from the military and he believes this played a role in his behavior after his deployment to Iraq. He volunteered to risk his life for his country, not knowing he had PTSD and his unit did not try to help him when he clearly had issues. He believes the outcome would have been different had he gotten help while he was in the service. He was hurting and did not know he could ask for help. b. He would like to thank the Board for taking the time to read his application and consider changing his discharge status. I wants to point out that he voluntarily joined the military during war time, fully knowing he would be going overseas to fight for his country. At the young age of 17, he went through Basic Combat Training (BCT) between his junior and senior year of high school, showing his dedication to the military at a young age. After he graduated from high school, he continued his military education at Fort Leonard Wood, MO. He was offered a spot in Airborne School after graduating in the top 10 percent of his class, again showing his dedication to the military at a young age. Upon graduation from Airborne School, he received orders to deploy to Balad, Iraq with the 3rd Brigade Combat Team, 82nd Airborne Division at the age of 19. c. These deployment orders gave him 2 weeks to get his affairs in order and get ready to ship out for 12 months to Iraq. He had just recently become a father to his son Van on 8 August that year and he decided to marry his son’s mother and set her up with benefits to take care of their son. During this deployment, he suffered from experiencing six different explosively formed penetrator (EFP) explosions and two fire fights. He now lives with these events in his daily life after the completion of his military service. After spending 12 months in Iraq, he came home to his wife who had left him for someone else and took all the money in their account that he had earned in Iraq and put it in her own account. This was a very stressful situation to deal with immediately after coming back from a rough deployment. d. After returning from Iraq, no one asked him if he had any issues going on or how he felt about life after deployment, or why he suddenly started to drink often and not care about his personal life as he used to. He chose to drink after work to try to hide the pain he was feeling from losing his family and dealing with his experiences in Iraq. This was a poor decision on his part, but given that he was 20 years old and experiencing two life-changing situations all at once with no family to talk and no military support, you can see he is only human. At the time, he did not know he had a problem. He received a driving under the influence (DUI) early in the morning after drinking at the bar with member so his platoon. e. The military decided it would be best to separate him for his action and take away all the benefits he was promised when he signed up. He believes he should have been given the opportunity to rehabilitate himself first. He was going through a lot at a young age and did not have the prover help or support system to get through and he got in trouble. He still spent 12 months in Iraq defending our great country’s freedoms. He went through years and months of training and sacrificed a lot for the military. f. He believes he should be able to go to college and better his life. He is not a bad person and has tried to better his life since the military. He stopped drinking and learned from his mistakes. Receiving a general discharge under honorable conditions takes away his chance to go to college and become a better person for his family. He feels he has done enough and deserves his GI Bill that was promised to him as well as a better discharge. Yes, he made mistakes, but he just needed a little help and encouragement to get better. Please consider upgrading his discharge so he can bet a better education for himself, his son, and his family. 3. The applicant initially enlisted in the U.S. Army Reserve (USAR) on 23 May 1989 at the age of 17 and served honorably until his discharge from the USAR to enlist in the Regular Army on 2 July 2008 at the age of 19. 4. He was awarded the military occupational specialty (MOS) 31B (Military Police) and deployed to Iraq from 1 December 2008 through 15 November 2009. 5. Multiple DA Forms 4856 (Developmental Counseling Form) show the applicant was counseled on the following occasions for the following reasons: * 28 July 2010, for missing physical training (PT) formation at 0630 * 4 February 2011, for failing to show up for PT at 0630, for showing up to work on the same day with a blood alcohol level of .01, and for being disrespectful in language to his senior noncommissioned officers (NCOs) 6. A DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), shows the applicant accepted nonjudicial punishment (NJP) under Article 15 of the UCMJ on 23 February 2011 for without authority failing to go to his prescribed place of duty at 0630 and for being disrespectful in language and deportment toward an NCO on 4 February 2011. 7. A third DA Form 4856, shows he was counseled on 4 March 2011 for failure to obey a direct order, being late for duty, and failure to report while he was already on extra duty for his previous NJP. 8. An 82nd Airborne Division Emergency Operations Center Report shows the applicant was stopped at approximately 0100, 5 March 2011 for an inoperable tail light, when during the course of the stop the police officer smelled alcohol and used an on- site breathalyzer to determine the applicant’s blood alcohol level was .09 and later at the police station his blood alcohol level was .12. His chain of command was notified and he was released. 9. The applicant’s records contain a General Officer Memorandum of Reprimand (GOMOR), dated 10 March 2011, signed by the 82nd Airborne Division Commanding General, which states he was reprimanded for being arrested for driving while impaired on 5 March 2011. The applicant acknowledged receipt of the GOMOR on 15 March 2011 and did not elect to submit matters in his behalf and on 24 March 2011 the GOMOR was filed in his Official Military Personnel File (OMPF). 10. A DA Form 2808 (Report of Medical Examination), dated 15 June 2011, shows the applicant underwent a medical examination for the purpose of administrative separation. He was found qualified for service with a physical profile rating of “1” in all categories and was recommended to follow up with the Department of Veterans Affairs (VA) for ankle pain. 11. A DD Form 2807-1 (Report of Medical History), likewise dated 15 June 2011, shows among the applicant’s annotations on the form were shortness of breath, painful knee joints, sprained ankle, and that he received off-post counseling for stress relief. 12. A DA From 3822 (Report of Mental Status Evaluation), dated 25 July 2011, shows: * the applicant underwent a mental status evaluation on the date of the form and was cleared for administrative separation under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) * he was found fit for full duty, including deployment * he could understand and participate in administrative proceedings, appreciate the difference between right and wrong, and met medical retention requirements * diagnoses of psychiatric conditions and personality and intelligence disorders were deferred * he was screened for PTSD and mild traumatic brain injury, and neither condition was present or if present, did not meet the criteria for Medical Evaluation Board (MEB) * there was no evidence of an emotional or mental disorder of psychiatric significance at this time to warrant disposition through medical channels; therefore he was psychiatrically cleared for any administrative action deemed appropriate by his command, including administrative discharge 13. On 4 August 2011, the applicant’s immediate commander notified him on his initiation of action to separate him under the provisions of Army Regulation 635-200, chapter 14, with a general discharge due to the commission of a serious offense, namely driving while impaired, which indicated he lacked the potential to be rehabilitated into a productive member of the U.S. Army. He was notified of his rights, including his right to consult with Counsel and submit statements in his behalf. 14. On 4 August 2011, the applicant acknowledged receipt of the notification and the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, chapter 14. He conferred with Counsel and elected to not submit statements on his behalf. 15. On 4 August 2011, his brigade commander recommended approval of the separation packet with a characterization of general, under honorable conditions. On 9 August 2011, the approval authority directed the applicant’s general discharge under honorable conditions under the provisions of Army Regulation 635-200, chapter 14 for the commission of a serious offense. 16. The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged accordingly on 5 October 2011, after 3 years, 3 months, and 4 days under the provisions of Army Regulation 635-200, chapter 14, due to the commission of a serious offense. His service was characterized as general, under honorable conditions. 17. On 12 June 2012, the applicant applied to the Army Discharge Review Board (ADRB), requesting an upgrade of his discharge as his record reflects he was an excellent Soldier; his discharge was excessive and deliberate as his DUI was insufficient as the basis for his discharge. On 30 August 2012, the ADRB denied his request, having determined his discharge was both proper and equitable. 18. On 6 December 2019, the Army Review Boards Agency (ARBA) requested the applicant provide a copy of any medical documents supporting his mental health issues. The applicant did not respond. 19. On 30 March 2020, the ARBA psychologist provided an advisory opinion, which states: a. A review of the applicant’s electronic VA medical record indicates he was diagnosed with PTSD on 13 September 2017. He has a service-connected disability rating of 60 percent with 50 percent for PTSD and 10 percent for tinnitus. b. On 18 November 2010, he self-referred to the behavioral health clinic to get assistance with anger management and attended 6 anger management group sessions between November 2010 and February 2011. On 5 March 2011, he was arrested by civilian authorities for DWI which he failed to report to his chain of command for 36 hours. On 10 March 2011 he received a GOMOR and on 11 March 2011, was evaluated at the Army Substance Abuse Program (ASAP) clinic as a command referral due to the DWI. He was diagnosed with alcohol abuse and enrolled in ASAP for treatment, but did not attend any ASAP sessions from March to September 2011. c. On 2 June 2011, he was a walk-in to the behavioral health clinic and requested information for the marriage and family life consultant. He was provided information and a safety check was completed. On 9 September 2011, the ASAP staff met with his chain of command and he was disenrolled from ASAP due to a lack of participation and his pending administrative separation on 5 October 2011. d. In accordance with the Secretary of Defense liberal guidance memorandum, there is documentation to support a behavioral health diagnosis at the time of the applicant’s discharge, although he met retention standards at the time of his discharge. In accordance with the liberal guidance memorandum, PTSD is a mitigating factor for the misconduct that led to the applicant’s discharge. A copy of the complete medical advisory was provided to the Board for their review and consideration. 20. On 25 April 2020, the applicant was provided a copy of the advisory opinion and given an opportunity to submit comments, but he did not respond. BOARD DISCUSSION: After reviewing the application and all supporting evidence, including the applicant’s statement and the Medical Advisory opinion, 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. The Board found that the applicant’s case warrants upgrade due to DoD standards of liberal consideration. There is sufficient evidence that the applicant’s PTSD is a mitigating factor for 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 amending the applicant’s DD Form 214 to show: * item 24 (Character of Service) "Honorable" * item 25 (Separation Authority) "Army Regulation 635-200, paragraph 5-3" * item 26 (Separation Code) "JFF" * item 28 (Narrative Reason for Separation) "Secretarial Authority" 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, United States Code, 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 ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. 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 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 a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 3. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 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. c. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180003162 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1