ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 May 2019 DOCKET NUMBER: AR20180006917 APPLICANT REQUESTS: an upgrade of his general 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 (VA) Rating Decision 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, in effect: a. While in Afghanistan, his brother committed suicide and his sister passed away in 2001. He returned to his duty station immediately following his brother's funeral. Losing both his brother and sister became overwhelming. He was sent to a doctor who diagnosed him with Post Traumatic Stress Disorder (PTSD). b. He was facing a medical board due to his PTSD. He did not want to get out of the military, which is why the thought of facing a medical board sent him over the edge. He went AWOL, drank and smoked marijuana, all with the intention of getting kicked out on his terms. This was a mistake and he was not thinking correctly. c. He now has a 70 percent service-connected disability for PTSD. He feels that his conduct was based on the war, as well as siblings' deaths. He would like his discharge upgraded due to his PTSD. 3. The applicant provides a copy of his VA rating decision letter, dated 12 March 2015, which reflects he was awarded a service-connected disability of 70 percent for PTSD. 1. 4. Review of the applicant's service records show: a. He entered the Army on 7 March 2007. b. Five DA Forms 4187 reflect the applicant's duty status changed as follows: * from present for duty (PDY) to absent without leave (AWOL), effective 15 December 2007 * from AWOL to PDY, effective 11 January 2008 * from PDY to AWOL, effective 9 September 2009 * from AWOL to civil confinement authority (CCA), effective date illegible * from CCA to PDY, effective 21 October 2009 c. He accepted nonjudicial punishment (NJP) on 17 January 2008 for disobeying a lawful order issued by a commissioned officer on 21 November 2007, failing to go at the time prescribed to his appointed place of duty on 30 November 2007, and absenting himself from his unit, without authority, from 15 December 2007 until 11 January 2008. d. He accepted NJP on 6 March 2008 for failing to go at the time prescribed to his appointed place of duty on two occasions, 6 February 2008 and 22 February 2008. e. He accepted NJP on 21 April 2008 for wrongfully using cocaine on or between 20 January 2008 and 20 February 2008. He was reduced to E-1/PVT. f. He accepted NJP on 4 December 2009 for absenting himself from his unit, without authority, from 9 September 2009 until 20 October 2009 and for wrongfully using marijuana between 1 August and 31 August 2009. He was reduced to E-1/PVT. g. DA Form 8003 (Army Substance Abuse Program (ASAP) Enrollment) dated 9 December 2009, reflects the applicant was command referred following a positive urinalysis for marijuana and rated as fair for performance efficiency and behavioral conduct. h. On 4 December 2009, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, commission of a serious offense. He wrongfully abused illegal drugs, absent without leave, and multiple failures to report. i. The applicant acknowledged receipt of the commander's intent to separate him on 18 December 2009. He waived consulting legal counsel and representation by military counsel and civilian counsel at no expense to the Government. He was advised of the importance of consulting with legal counsel, and the consequences of waiving that right. He acknowledged he: a. * understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him * understood he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions * understood if he received a discharge characterization of less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade, but he understood that an act of consideration by either board did not imply his discharge would be upgraded j. The separation authority approved the applicant's discharge under the provisions of Army Regular 635-200, paragraph 14-12c, commission of a serious offense, with his service characterized as general under honorable conditions. [The separation authority's memorandum is not available for review]. k. His DD Form 214 reflects he was discharged on 29 January 2009, under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 14-12c(2), misconduct (drug abuse), with a characterization of service of general under honorable conditions. He completed 2 years, 7 months, and 14 days of active service. He had lost time from 15 December 2007 to 10 January 2008 and from 9 September 2009 to 21 October 2009. The DD Form 214 also shows in: * Item 26 (Separation Code) – JKK (drugs) * Item 27 (Reentry Code) - 4 5. The applicant applied to the ADRB for an upgrade of his discharge on 1 December 2010. The ADRB determined the discharge was both proper and equitable and voted to deny relief. 6. On 22 June 2018, the Army Review Boards Agency Psychologist, conducted a review of the available documentation pertaining to the applicant. It was determined that the applicant did not have mitigating medical or behavioral health condition(s) for the offenses which led to his separation from the Army. 7. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal. The applicant did not respond. 8. By regulation (AR 635-200), action will be taken to separate a member for misconduct such as commission of a serious offense. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 9. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System (DES) and sets forth policies, 1. responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. 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 short term of service completed prior to multiple UCMJ offenses, the Board concluded that the characterization of service was appropriate. For that reason, the Board recommended denying the applicant’s request for relief. 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. 5/13/2019 X CHAIRPERSON Signed by: 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 (Active Duty Enlisted Administrative Separations), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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. b. Paragraph 3-7b states 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. Chapter 14, of the version in effect at the time, established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. It provided that action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. However, the separation authority could direct an honorable discharge if merited by the Soldier's overall record. 3. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System (DES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria prescribed in AR 40-501, which governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. 4. 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 1. 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. 5. 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. 6. 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.