ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 19 September 2019 DOCKET NUMBER: AR20180008286 APPLICANT REQUESTS: * reconsideration of his request to upgrade of his discharge from under other than honorable to honorable conditions * new request for medical retirement with all due military benefits APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * U. S. Army Medical Department Activity (USAMEDDAC), Fort Polk, LA Memorandum, dated 21 June 2004, Subject: Mental Health Evaluation in the case of SPC D___n K. A___ * Patient Order List (labs and prescription), dated 21 June 2004 * DD Form 214 (Certificate of Release or Discharge from Active Duty), period ending 21 July 2004 * 3 character statements * Under Secretary of Defense Memorandum for Service Secretaries, dated 25 August 2017 * Department of Veterans Affairs (VA) Decision Letter to the applicant * ExParte response from a veterans representative on the behalf of the applicant, dated 18 July 2019 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 AR20090004931 on 10 September 2009. 2. The applicant states, through his representative from the National Organization of Veterans’ Advocates (N.O.V.A.), he is an Iraqi Veteran who suffers from post-traumatic stress disorder (PTSD), depression, anxiety, and schizophrenia. He states the applicant was a good person, but incapable of performing military duties and mitigating factors existed, the applicant’s overall service record was good. The applicant, and his representative contend there was a serious violation of discharge regulations. They state the discharge was inequitable. In consequence, anything less than an honorable discharge is viewed as derogatory, and inevitably stigmatizes the applicant. He states, this "unmistakable social stigma ...” greatly limited opportunities for both public and private civilian employment. The applicant contends the character of his discharge does not reflect the overall service and sacrifice he made for his country. 3. The applicant provides: a. A copy of a U. S. Army Medical Department Activity (USAMEDDAC), Fort Polk, LA Memorandum, dated 21 June 2004, Subject: Mental Health Evaluation in the case of SPC D___n K. A____. The memorandum summarizes the evaluation of the applicant’s mental health, diagnoses, and determination for continued military service. The applicant was determined to not have a severe mental disorder and was not considered mentally disordered. He was returned to his command with the recommendation for expeditious administrative separation. The applicant was also provided a medication treatment plan through subsequent follow-up appointments. b. A copy of his Patient Order List (labs and prescription), dated 21 June 2004, showing, in part, that he was prescribed a medication called Paroxetine (Paxil) at that time. c. DD Form 214 (Certificate of Release or Discharge from Active Duty), period ending 21 July 2004 with narrative reason for separation in lieu of trial by court-martial. d. 3 (three) character statements, of which, the letter from his former commander and his mayor were previously provided in ABCMR Docket Number AR20090004931, dated 10 September 2009. The third character statement, dated 5 December 2011, was from a comrade who served with the applicant in support of Operation Iraqi Freedom. Within the statement, the applicant was described as an exemplary Soldier and to have performed all tasks in a timely and efficient manner. He was said to have exemplified courage and bravery daily and showed steadfast loyalty, integrity, and honor to his fellow Soldiers and the U.S. Army. The applicant was said to have displayed great leadership qualities and the ability to perform under adverse conditions and should be allowed to reenlist as he is believed to be a tremendous asset to his fellow Soldiers and the U.S. Army. e. A copy of the Under Secretary of Defense Memorandum for Service Secretaries, dated 25 August 2017. The memorandum provides clarifying guidance to Boards for Correction of Military/Naval Records (BCM/NR’s) and Discharge Review Boards (DRBs), with regard to relief, in part, for Veterans with mental health conditions. The guidance provided to Military Department Secretaries was said to ensure fair and consistent standards, in part, of review for Veterans with mental health conditions regardless of when and which Military Department they served. f. A copy of the VA Decision Letter to the applicant (not dated), where the VA granted, in part, the applicant was considered to have service connection for the treatment of PTSD. 4. A review of the applicant’s service records show: a. He enlisted in the Regular Army on 22 October 2002. b. On 7 July 2004, the applicant’s immediate commander initiated a DD Form 2707 (Confinement Order) against him. c. On 9 July 2004, the applicant’s commander, with the approval of the Special Court-Martial Convening Authority and Staff Judge Advocate, recommended him for pretrial confinement due to his history of AWOL offenses. His commander justified the pretrial confinement was necessary because less severe forms of restraint were determined to be inadequate. d. On 9 July 2004,court martial charges were preferred against the applicant, on a DD Form 458 (Charge Sheet), for: * three specifications of failing to go to the appointed place of duty at the prescribed time * two specifications of being absent without leave (AWOL) from 15-16 June 2004 and 17-18 June 2004 * one specification of disobeying his superior commissioned officer * two specification of disobeying a noncommissioned officer * one specification of wrongful use of marijuana e. On 9 July 2004, the applicant consulted with legal counsel and submitted a memorandum to his commanding officer requesting a discharge for the good of the service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations- Active Duty Enlisted Administrative Separations), Chapter 10 in lieu of court-martial. Within the memorandum, the applicant stated that he understood if the discharge was accepted, he may be discharged with an under other than honorable conditions character of service. He also stated that he understood a result of the issuance of such a discharge, he may be deprived of many or all army benefits and may be ineligible for many or all benefits administered by the Veterans Administration. The applicant was notified of his rights by counsel and was advised that he submit statements on his behalf. He provided no further statements. f. On 13 July 2004, the separation authority approved the applicant’s request for discharge and ordered he be reduced to the grade of private/E-1, discharged under the provisions of AR 635-200, Chapter 10, and issued an Under Other than Honorable Conditions Discharge Certificate. g. Orders 197-0364, dated 15 July 2004, reassigned the applicant to the US Army Separation Transfer Point for separation processing on 21 July 2004. h. DD Form 214 shows he was discharged on 21 July 2004, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 10, in lieu of court-martial and his service was characterized as under other than honorable conditions. His DD Form 214 also shows he was deployed in support of Operation Iraqi Freedom with duty at Habbaniyah from 8 April 2003 to 7 April 2004. He completed 1 year, 8 months, and 27 days of active service with 3 days of lost time. 5. The applicant’s service record was void of medical and mental health documentation. 6. In ABCMR Docket Number AR20090004931, the applicant requested, in part, an upgrade of his under other than honorable conditions discharge because of his service in Iraq. He stated the antidepressant medication prescribed to him effected his decision making ability. The Board concluded, although the applicant served successfully in Iraq, based on his disciplinary record, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. The Board determined the evidence presented did not demonstrate the existence of a probable error or injustice concerning his discharge be upgraded because of his service in Iraq. 7. On 19 June 2019, a medical advisory opinion was received from the ARBA Clinical Psychiatrist in the processing of this case. The psychiatrist was asked to determine if there is a nexus between a boardable behavioral health condition and the misconduct that resulted in the applicant’s discharge. The psychiatrist provided the following opinion: a. The opinion is based on a thorough review of available documentation, which indicates that there is no evidence of an unfitting behavioral health condition at the time of the applicant’s military service. b. His record is void of the specific facts and circumstances concerning events that could have contributed to a behavioral health service connected discharge from the Army. c. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum, the applicant’s medical records DO NOT support the existence of PTSD at the time of discharge. d. The applicant’s military medical records indicate, with respect to behavioral health diagnoses, the applicant DID meet medical retention standards IAW AR 40-501. e. Based on available documentation, the applicant does not have a diagnosis of PTSD. The agency psychiatrist concluded, there is no evidence that a behavioral health condition mitigated the applicant’s misconduct leading to an early separation from the Army. 8. The applicant was provided a copy of this advisory opinion on 27 June 2019, and was given 30 days to submit a rebuttal or any comments. 9. On 18 July 2019, a response was provided from a veterans’ claim representative on behalf of the applicant. The applicant and his representative referenced VA’s decision, to grant service connection for the treatment of PTSD. The applicant and his representative contended the Advisory Opinion was inconsistent and the applicant meets the minimal qualifications for PTSD. 10. AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, and appointment, including officer procurement programs. Individuals evaluated will be reported as Medically Acceptable or Medically Unacceptable by reason of medical fitness or medical unfitness. 11. By regulation, AR 635-200, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 12. The Board should consider the applicant’s submissions in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board found some relief was warranted. The applicant’s contentions, medical concerns, the medical advisory opinion, and his rebuttal were carefully considered. Based upon the medical advisory finding no boardable condition during service, the Board concluded a medical retirement was not appropriate. Based upon the type of misconduct leading to his separation, as well as the approximately two years of honorable service completed prior to the misconduct, the Board concluded that granting clemency by upgrading the characterization of service to Under Honorable Conditions (General) was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : :X :X :X 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 reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General). 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. AR 635-200, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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 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. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 2. AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, and appointment, including officer procurement programs. Individuals evaluated will be reported as Medically Acceptable or Medically Unacceptable by reason of medical fitness or medical unfitness. 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) AR20180008286 4 1