ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  19 June 2019

	DOCKET NUMBER:  AR20180005742


APPLICANT REQUESTS: upgrade of his general under honorable conditions discharge to honorable. 

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)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Department of Veterans Affairs (DVA) explanation of Post-Traumatic Stress Disorder (PTSD)
* Background check assessment from Risk Assessment Group 
* Anger Management Group certificate of completion
* DVA Medication Profile

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 was not given the opportunity to receive the mental help, by his commanding
officers, and was not given the proper mental evaluation from his deployment.

	b.  On 22 June 2017, he was diagnosed with PTSD with major depressive disorder and alcohol use disorder.  

	c.  He had mental issues during his military service to include occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, mood, impaired judgment, and impaired impulse control with Kleptomania.

3.  The applicant provided the following:

a.  A Department of Veterans Affairs (DVA) rating decision with explanation of his
PTSD that shows: he was previously rated at 50 percent for major depressive disorder with anxious distress.  The rating was increased to a 100 percent rating for PTSD with major depressive disorder and alcohol use 

	b.  Letter from Risk Assessment Group, dated 26 February 2017, that shows this is an employment screening and information service.  He had a pre-employment background check conducted, he was cleared in all areas except in Broward County Florida (driving with suspended license and operating an unsafe vehicle).

c.  Certificate of Completion, dated 15 October 2013, was signed by a licensed
master social worker (LMSW) following a 12 week anger management group.

d.  DVA healthcare system medication history dated 3 April 2018 showing the
applicant was prescribed Sertraline from 12 February 2014 to 19 January 2016.  

4.  A review of the applicant’s service record shows:

	a.  He enlisted in the Regular Army on 28 May 2008.

	b.  He held a military occupational specialty of 88M (motor transport operator) and he attained the rank/grade of specialist (SPC)/E-4.  He was assigned to the 32nd Transportation Company, Fort Carson, CO.  

	c.  On 4 August 2010, he was observed shoplifting a number of items from the main exchange of the Army and Air Force Exchange Service (AAFES) at Fort Carson, which was reported as larceny of AAFES property.  The applicant provided a sworn statement that shows he placed several items in his exchange bag and one item on his person.  He stated he took the items because he wanted them for free. 

	d.  On 14 October 2010, the applicant’s immediate commander notified him of his
intent to initiate separation proceedings under the provisions of Army Regulation (AR) 635-200, Chapter 14-12c  due to misconduct (commission of a serious offense), and recommended the applicant receive a general, under honorable conditions characterization of service.

	e. The applicant was advised of his rights to counsel, and provided him the opportunity to submit statements on his behalf.  He signed the acknowledgment of notification.  He was required to undergo a mental examination.

	f.  On 15 October 2010, the applicant consulted with legal counsel and was advised of the impact of the discharge action, and waived both, the consideration of his case and his personal appearance before and administrative separation board.  He submitted a statement on his own behalf which was not found in the available records.

g.  On 26 October 2010, the unit commander subsequently recommended
separation from the Army and waiver of further rehabilitative efforts.

h.  The intermediate commander reviewed the proposed action and recommended
the applicant’s separation with a recommendation of a general, under honorable conditions discharge.

i.  The separation authority approved the applicant’s discharge under the provisions
of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14-12c due to misconduct (commission of a serious offense) and directed the applicant receive a general, under honorable conditions characterization of service.

	j.  On 9 November 2010, he was discharged in accordance with AR 635-200, paragraph 14-12c (2) for misconduct (serious offense) with a general, under honorable conditions characterization of service.  His DD Form 214 shows he completed 2 years, 5 months, and 12 days of active service.  He served in Afghanistan from 15 April 2009 to 5 April 2010.  He was awarded or authorized:

* Afghanistan Campaign Medal with Campaign Star
* Army Achievement Medal (2nd award)
* National Defense Service Medal
* Global War on Terrorism Service Medal
* Army Service Ribbon
* Overseas Service Ribbon
* NATO Medal
* Combat Action Badge

5.  On 4 November 2011, the Army Discharge Review Board (ADRB) considered his case (Docket Number AR20110009235).  He had stated his discharge was inequitable based on three incidents within 29 months of service with no other adverse actions nor the opportunity to rehabilitate. The applicant requested an upgrade.  The ADRB determined the discharge was both proper and equitable, and denied his requested relief.

6.  On 12 January 2015, he appeared before the ADRB (Docket Number AR20140017281).  He testified and stated he did not receive a proper mental evaluation when the crimes were committed or during his separation process. The applicant requested an upgrade to honorable.  The ADRB determined the applicant was properly and equitably discharged, and denied the requested relief.

7.  On 10 May 2018, the ARBA psychologist rendered an advisory opinion in the processing of this case.  He opined:

a.  The evidence at the time contradicted PTSD as a diagnosis.  The applicant was
denying symptoms, and the command would have had no reason to refer the applicant for help when he was denying symptoms to his mental health providers.

	b.  The applicant had no diagnosis in service and his responses were inconsistent with him having PTSD or any other psychiatric diagnosis at the time, a conclusion reached on his separation mental status examination (MSE).  His diagnoses were made well after his active duty service.

c.  The applicant’s medical conditions were duly considered during his medical 
separation processing.  Based on the information available for review at the time, the applicant did not have mitigating medical or behavioral health condition(s) for the offenses which led to his separation from the Army.

8.  On 15 May 2018, the advisory opinion was forwarded to the applicant for acknowledgment and/or response.  He did not respond.

9.  By Army Regulation, (AR) 635-200, Soldiers are subject to separation under the provisions of chapter 14, for the commission of a serious offense, including abuse of illegal drugs, frequent incidents of discreditable nature with civil or military authorities.  An under other than honorable conditions discharge was an appropriate and authorized characterization of service. 

10.  In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.

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, 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.  He did not provide letters of support nor evidence of post-service achievement for the Board’s consideration.


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.


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 basic authority for the separation of enlisted personnel.

a. Paragraph 3-7a provides that an honorable discharge is given when the quality of 
the Soldier's service has generally met standards of acceptable conduct and duty performance.

b. Paragraph 3-7(3)b(1) provides that 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, of the version in effect at the time, established policy and 
prescribed procedures for separating members for the commission of a serious military or civilian 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.

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; TBI; 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 to 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 that misconduct which led to the discharge.

5.  The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  Boards for Correction of Military/Naval Records may grant 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.

a. 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, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official government acknowledgement that a relevant error or injustice was committed, and uniformity of punishment.

b. Changes to the narrative reason for the 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.


ABCMR Record of Proceedings (cont)	 AR20180005742


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