BOARD DATE: 30 April 2020 DOCKET NUMBER: AR20180004499 APPLICANT REQUESTS: * an upgrade of his discharge under honorable conditions (general) to honorable * amendment of his narrative reason for separation to disability * restoration of his rank to specialist/E-4 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Rating Decision, Department of Veterans Affairs (VA), dated 23 February 2018 * Letter, VA, dated 12 March 2018 (Summary of Benefits) REFERENCES: 1. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the Army Board for Correction of Military Records (ABCMR. 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. 2. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, including officer procurement programs, retention, and separation, including retirement. Chapter 7 prescribes a system for classifying individuals according to functional abilities under six factors designated "P-U-L-H-E-S." Four numerical designations are used to reflect different levels of functional capacity. The basic purpose of the physical profile serial is to provide an index to overall functional capacity. Therefore, the functional capacity of a particular organ or system of the body, rather than the defect per se, will be evaluated in determining the numerical designation 1, 2, 3, or 4. An individual having a numerical designation of "1" under all factors is considered to possess a high level of medical fitness. 3. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Paragraph 3-7a stated an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier's service generally has met the standard of acceptable conduct and performance of duty for the Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. An honorable discharge may be furnished when disqualifying entries in the Soldier's military record are outweighed by subsequent honest and faithful service over a greater period of time during the current term of service. It is a pattern of behavior and not the isolated incident that should be considered the governing factor in determination of character of service. b. Paragraph 3-7b stated 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. c. Paragraph 14-12c stated Soldiers are subject to separation action for the commission of a serious military or civil offense if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. Abuse of illegal drugs is serious misconduct. Relevant facts may mitigate the nature of the office. A single drug abuse offense may be combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation. The separation reason in all separations authorized by paragraph 14-12c(2) will be "misconduct – abuse of illegal drugs." 4. The Diagnostic and Statistical Manual of Mental Disorders (DSM), chapter 7, addresses trauma and stress or related disorders. The DSM is published by the American Psychiatric Association (APA) and provides standard criteria and common language for classification of mental disorders. a. In 1980, the APA added post-traumatic stress disorder (PTSD) to the third edition of its DSM nosologic classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. From a historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis). The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma." b. The fifth edition of the DSM was released in May 2013. This revision includes changes to the diagnostic criteria for PTSD and acute stress disorder. The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience. The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters: intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity. The sixth criterion concerns duration of symptoms, the seventh criterion assesses functioning, and the eighth criterion clarifies symptoms as not attributable to a substance or co- occurring medical condition. 5. As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis, and treatment of PTSD, the Department of Defense acknowledges that some Soldiers who were administratively discharged under other than honorable conditions (UOTHC) may have had an undiagnosed condition of PTSD at the time of their discharges. It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldiers' misconduct which served as a catalyst for their discharge. Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from a temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period of time. 6. On 3 September 2014 in view of the foregoing information, 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 applicants' service. 7. 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. 8. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to 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. FACTS: 1. The applicant states: a. He was diagnosed by the VA with PTSD due to combat exposure while deployed to Afghanistan. He is judged by the VA to be totally and permanently disabled due solely to his service-connected PTSD. He is being compensated at the 100-percent rating because of his unemployability due solely to his service-connected PTSD. b. The reason for his separation, one-time drug use, was a symptom and coping mechanism triggered by his PTSD. c. The narrative reason for separation and corresponding service characterization and rank reduction are improper because the misconduct has been medically evaluated to have been caused by his PTSD. 2. He enlisted in the Regular Army on 8 May 2012. He completed basic combat and advanced individual training and was awarded military occupational specialty 15W (Unmanned Aircraft System Operator). 3. 2nd Brigade Combat Team, 1st Cavalry Division, Permanent Orders 297-016, dated 24 October 2013, awarded him the Combat Action Badge for satisfactory performance of his duties while being engaged and/or engaging the enemy on 28 August 2013 in Afghanistan. 4. The applicant's separation packet was not available for review. 5. Headquarters, 2d Armored Brigade Combat Team, 2d Infantry Division, memorandum, dated 10 August 2015, subject: Separation under Army Regulation 635 200, Chapter (should read Paragraph) 14-12c(2), Misconduct – Abuse of Illegal Drugs, (Applicant), states after carefully reviewing the applicant's separation packet, his brigade commander: a. directed the applicant's separation from the Army prior to the expiration of his current term of service, b. directed characterization of the applicant's service as general under honorable conditions, c. determined the applicant was not eligible for transfer to the Individual Ready Reserve, and d. determined the applicant did not meet the requirements for rehabilitative transfer. 6. He was discharged on 15 September 2015. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in: * item 4a (Grade, Rate, or Rank) – Private * item 4b (Pay Grade) – E-1 * item 12i (Effective Dated of Pay Grade) – 24 July 2015 * item 18 (Remarks) – * Service in a Designated Imminent Danger Pay Area * Service in Afghanistan from 6 July 2013 through 10 December 2013 * Member has Not Completed First Full Term of Service * item 23 (Type of Separation) – Discharge * item 24 (Character of Service) – Under Honorable Conditions (General) * item 25 (Separation Authority) – Army Regulation 635-200, paragraph 14-12c(2) * item 28 (Narrative Reason for Separation) – Misconduct (Drug Abuse) 7. His Enlisted Record Brief, dated 16 September 2015, shows: * he was reduced to the rank/grade of private/E-1 effective 24 July 2015 * his last physical examination was 9 April 2015 – Medical Readiness Classification 1 * he was under suspension of favorable personnel actions with a starting date of 29 July 2015 8. On 12 July 2017, the Army Discharge Review Board denied the applicant's request to upgrade his general discharge under honorable conditions to honorable. The board determined his separation was both proper and equitable. a. The board considered the applicant's contentions; however, it was unknown if these contentions had merit because the facts and circumstances leading to his discharge are not contained in his service record. The burden of proof remains with the applicant to provide appropriate documents, such as the discharge packet or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action for the board's consideration. b. There is a presumption of regularity in the conduct of governmental affairs which is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption. c. The independent documents submitted by the applicant from the VA were noted; however, the fact that the VA has granted the applicant service connection for medical conditions the applicant suffered while serving on active duty does not support a conclusion that these conditions rendered the applicant unfit for further service at the time of his discharge processing. 9. The VA Rating Decision, dated 23 February 2018, shows the applicant's entitlement to individual unemployability was effective 16 September 2015 and his evaluation of PTSD, which is currently 70-percent disabling, was continued. 10. The letter from the VA, dated 12 March 2018, shows the applicant's VA summary of benefits as: * he being paid at the 100-percent rate because he is unemployable due to his service-connected disabilities * he is considered to be totally and permanently disabled due solely to his service- connected disabilities 11. The Army Review Boards Agency Psychologist rendered a medical advisory opinion on 6 April 2020 wherein she stated: a. The applicant's military records indicate he was seen in the Behavioral Health Clinic on 1 July 2015 for occupational stressors and relationship problems while stationed in Korea. He reported he might be discharged for drug use but denied any drug use. He reported concerns about his spouse in the United States as she had recently used drugs and he feared she would relapse. b. On 8 July 2015, the applicant informed his behavioral health provider that he would be starting mandatory Alcohol and Substance Abuse Program treatment on 14 July 2015. c. On 28 July 2015, he reported to his social worker that he had received nonjudicial punishment under Article 15 of the Uniform Code of Military Justice and was told he would be separated for drug use under the provisions of Army Regulation 635-200, paragraph 14-12c. d. In accordance with the 3 September 2014 Secretary of Defense liberal guidance memorandum and the 25 August 2017 clarifying guidance, there is documentation to support a behavioral health condition at the time of his discharge. e. The applicant met retention standards at the time of discharge. f. There was no documentation regarding the specific acts of misconduct that led to his discharge. His military records do not contain his separation packet or documentation regarding his nonjudicial punishment and the misconduct leading to his separation. Without documentation regarding the specific misconduct to consider, it is not possible to opine with respect to mitigating the misconduct. 12. The applicant was provided a copy of this advisory opinion on 11 May 2018 and given an opportunity to comment and/or submit a rebuttal. He did not respond. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records, VA documents submitted by the applicant, a medical advisory opinion and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the medical records and conclusions of the advising official. The Board concurred with the medical advisory opinion finding the VA’s ratings did not support the conclusion that his medical conditions rendered the applicant unfit for further service at the time of his discharge processing and further found insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the narrative reason for separation and character of service the applicant received upon separation was not in error or unjust. 2. The Board members all agreed that the burden of proof lies with the applicant; however, he did not provide any supporting documentation and his service record has insufficient evidence to support his request for restoration of rank. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180004499 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1