ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 May 2019 DOCKET NUMBER: AR20180006361 APPLICANT REQUESTS: reconsideration of his previous request for an upgrade of his under honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forced of the United States) * Self-Authored Statement * Letter from York County Veterans Affairs (VA) Office to a R___J___, LLC * Excerpt of Medical Record * VA Award Letter * Veterans Court Alternative Program (VCAP) Completion Letter * VCAP Agreement * Letter to VA Service Officer (VSO) * Applicant’s Five Year Plan * Community Service Completion Memorandum * Letter to Mr. X___ * Applicant Letter about VCAP * Essay on Alcoholism and Driving Under the Influence (DUI) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20160005200 on 29 February 2016. 2. The applicant states his separation was based on a chapter for misconduct; however, the actual offense was two consecutive DUI charges. He states his charges were a result of the post-traumatic stress disorder (PTSD) he suffered as a result of his combat tour. He states his PTSD affected his ability to sustain a stellar and exemplary performance. He doesn’t deny the bad judgement calls but that is not an example of his character, as his behavior was from PTSD and his wife and kids leaving him. As a combat veteran he struggled after deployment, with family and combat losses. He tried to maintain his composure with no success. He sought comfort in alcohol, which led to his apprehension for DUI, and his spiraling erratic behavior which led to another DUI in less than three months. Instead of nonjudicial punishment, the local authorities retained jurisdiction for the DUIs. Due to a conviction for DUI, he was chaptered out of the Army with a chapter 14, even though he served nearly 6 years honorably. He is asking that the Board review his military service record and empathize with his circumstances. 3. The applicant provides, a. Letter from York County VA Office to a X ___, LLC, dated 11 July 2017, which thanks X___, LLC for allowing the VCAP to work with his client. b. Excerpt of Medical Record, created 23 April 2015, which states the applicant contacted his provider about a medical evaluation board (MEB), while he was in the process of separating from the Army. c. VA Award Letter, dated 16 November 2015, which states the applicant received a combined rating of 80% and receives $1,551.48 monthly which started 1 August 2015. d. VCAP Completion Letter, dated 30 January 2018, which states the applicant completed the VCAP. e. VCAP Agreement, which outlines the requirements to successfully complete the program. f. Letter to VSO, dated 12 January 2018, which thanks the recipient for the opportunity to work with the applicant, and provided a continued treatment plan for the applicant to follow. g. Applicant’s Five Year Plan, dated, 14 November 2017, which states the applicant plans to get his discharge upgraded to an honorable, finish his degree and obtain a bachelors in software and programming engineering. With this degree and his history in the information technology field, he plans to enter the cyber security or code writing fields. h. Community Service Completion Memorandum, dated 12 January 2018, which states the applicant completed 30 cumulative hours of community service at Tender Hearts Thrift Store and Community Outreach in Rock Hill South Carolina. i. Letter to Mr. X___, which states where his life is now at this moment. He describes his past troubles and his positive outlook on his future. j. Applicant Letter about VCAP, which states that the applicant is thankful to complete the program, and how the program has helped him maintain his better way of life and sobriety. k. Essay on Alcoholism and Driving Under the Influence, dated 26 January 2018, which states the background of alcoholism and driving under the influence and how alcoholism affects people’s lives daily. He further explains the laws pertaining to alcohol abuse, different types of DUIs and field sobriety test. It further explains the ramifications, penalties and court issues pertaining to failed sobriety test and DUIs. He writes about the problem and prevention of alcohol related accidents, and the mothers against drunk driving initiative. Additionally, he explains the health concerns as they relate to abuse of alcohol, and the treatment options available. 4. A review of the applicant’s service record shows: a. He enlisted on 2 September 2009, in to the Regular Army (RA). He served in Afghanistan from 23 July 2010 to 3 July 2011. b. He was discharged for immediate reenlistment on 19 April 2012, and reenlisted in the RA on 20 April 2012. c. He received a mental status evaluation on 24 March 2015, which identified that he was mentally responsible, able to distinguish right from wrong, had the mental capacity to understand and participate in board proceedings, and he met medical retention requirements. d. On 9 April 2015, he received a General Officer Memorandum of Reprimand (GOMOR) after he was apprehended by Georgia State Patrol (GSP) for operating a motor vehicle under the influence of alcohol on 7 March 2015. He acknowledged receipt and understanding of the GOMOR on 14 April 2015. e. On 24 April 2015, his immediate commander notified him that action was being initiated to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 14 (Separations for Misconduct), paragraph 14-12c (Commission of a Serious Offense), based on his apprehension for operating a motor vehicle while under the influence of alcohol, failing standardized field sobriety tests, and refusing to complete a lawfully requested test to measure his blood alcohol content. He recommended a general under honorable conditions discharge. g. He acknowledged receipt of the separation notice of the commander’s intent to separate him under the provisions of AR 635-200, chapter 14-12c, and the rights available to him. He consulted with legal counsel on 5 May 2015 and acknowledged: * He may expect to encounter substantial prejudice in civilian life if an other than honorable discharge or a general discharge under honorable conditions is issued to him * That he may be ineligible for some benefits as a veteran under both Federal and State laws * He will be ineligible for enlistment in the United States Army for a period of 2 years after discharge h. The applicant was again apprehended on 10 May 2015 by GSP for operating a motor vehicle while under the influence of alcohol. i. He submitted a statement to the Brigade Commander on 11 May 2015, in regards to his election of rights. j. Subsequent to the applicant's acknowledgement on 12 May 2015, the immediate commander formally initiated separation action against the applicant under the provisions of chapter 14 of AR 635-200, separation for misconduct, commission of a serious offense. k. On 15 May 2015, the Battalion Commander reviewed the separation recommendation of the applicant and recommended separation under honorable conditions. l. On 27 May 2015, the applicant MEB proceedings reflected that he did not meet medical standards for PTSD, Traumatic Brain Injury (TBI) with Headache Syndrome, TBI with Mild Cognitive Impairment, and Left Ankle Sprain. The applicant’s MEB was referred to the Physical Evaluation Board (PEB), but there is no record of PEB findings. In review of the MEB findings, it appears that the process was not completed, as the applicant and the approving authority failed to sign the document, therefore voiding its validity. m. On 7 June 2015, following a legal review for legal sufficiency, and a review of the MEB proceedings, the separation authority approved the request for discharge for commission of a serious offense and ordered his service be characterized as general under honorable conditions. He found that his medical condition was not a direct or substantial cause of his misconduct. n. On 9 June 2015, he received a GOMOR for being apprehended by GSP for operating a motor vehicle under the influence of alcohol on 10 May 2015. o. He acknowledged receipt and understanding of the GOMOR on 9 June 2015, and elected to submit a rebuttal. There is no evidence of a rebuttal in his records. p. He was discharged on 23 July 2015. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged from active duty under the provisions of AR 635-200, Chapter 14-12c with a general under honorable conditions characterization of service. He completed 5 years, 10 months, and 22 days of active duty service. He was awarded or authorized: * Afghanistan Campaign Medal with 2 Campaign Stars (2nd Award) * Army Commendation Medal (2nd Award) * Army Achievement Medal * NATO Medal * Army Good Conduct Medal * National Defense Service Medal * Global War on Terrorism Service Medal * Noncommissioned Officer Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon * Combat Action Badge 5. The applicant applied to the Army Discharge Review Board (ADRB) on 26 February 2016 to have his discharge upgraded. His request was denied in full, and the Board determined that he was properly and equitably discharged. 6. On 5 June 2018, the Army Review Boards Agency medical advisor/ psychologist reviewed the applicant's case and rendered an advisory opinion and opined: a. The applicant did not meet medical retention standards in accordance with Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), AR 40-501 (Medical Services - Standards of Fitness), and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement or Separation), that were applicable to the applicant’s era of service. b. The applicant’s medical conditions were duly considered during medical separation processing. c. A review of the available documentation found insufficient evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. d. 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. 7. On 6 June 2018, the applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal. His VSO responded by submitting the applicants service treatment records, a summary of his incomplete MEB packet and a MEB packet closed before completion. The VSO also states that the applicant completed a solicitor program to get his records expunged based a successful completion of the program and because the legal team felt the behavior was tied to his diagnosis of PTSD. The medical records indicated: a. The applicant did not meet medical standards for PTSD, TBI with Headache Syndrome, TBI with Mild Cognitive Impairment, and Left Ankle Sprain b. The applicant’s MEB was referred to the PEB, but he did not make an election for his MEB proceedings. c. The applicant completed a Hearing Loss and Tinnitus questionnaire, a Residuals of TBI questionnaire, a PTSD questionnaire, and a compensation and pension exam. 8. By regulation, separations under the provisions of AR 635-200, chapter 14 provides policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. 9. The General Court-Martial Convening Authority may direct, in writing, that the Soldier be processed through the physical disability system when action under the Uniform Code of Military Justice has not been initiated, and it is determined that the Soldier’s medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative elimination. 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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the pattern of misconduct, as well as the medical advisory’s findings, the Board concluded that there was insufficient evidence to show that there was an error or injustice which would warrant making a change to the characterization of service. 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. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), sets 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. Readiness is promoted by maintaining high standards of conduct and performance. 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 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. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. 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. d. The General Court-Martial Convening Authority (GCMA) may direct, in writing, that the Soldier be processed through the physical disability system when action under the UCMJ has not been initiated, and one of the following has been determined. The authority of the GCMCA to determine whether a case is to be processed through medical disability channels or under administrative separation provisions will not be delegated: (1) The Soldier’s medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative elimination. (2) Other circumstances of the individual case warrant disability processing instead of further processing for administrative separation. 2. 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. 3. 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 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 based on 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. ABCMR Record of Proceedings (cont) AR20180006361 7 1