IN THE CASE OF: BOARD DATE: 25 February 2020 DOCKET NUMBER: AR20180012753 APPLICANT REQUESTS: the following corrections to his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 14 July 2010: * his general, under honorable conditions characterization of service be upgraded to fully honorable * add Army Commendation Medal * add one Army Achievement Medal for a total three medals * add Parachutist Badge * add any additional authorized awards, badges, or service ribbons APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Page 2 of Form SSA-827 (Authorization to Disclose Information to the Social Security Administration (SSA)) * Letter, Department of Veterans Affairs (VA) dated 30 October 2017 FACTS: 1. The applicant did not file within the 3 year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) 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 he never was in trouble while he served in the U.S. Army except for near the end of his service. He never received a negative counseling statement. He claims his career ended due to a ridiculous and petty disagreement between himself and his rear detachment commander. He was sent back to his installation in the United States to recover from an injury. In 2010, they had a disagreement concerning his medical treatment from an injury he incurred while serving in Iraq. At the time the rear detachment commander was discharging most of the injured Soldiers. He did not want to be discharged. He states he went to see a doctor off post that led to him losing his rank, loss of 3 months’ pay, extra duty, and his eventual discharge for misconduct. To him, it is absurd. He is rated 100 percent for service-connected disabilities from the VA and he receives financial benefits from the SSA. Additionally he states his DD Form 214 does not show all his authorized awards, decorations, badges and service ribbons. He has lost his award documents and his papers where he disputed the actions of his rear detachment commander. He asks the Board to, in effect, research his military personnel record for the documents to support his multiple corrections to his separation document. 3. The applicant enlisted in the Regular Army on 9 January 2008 in pay grade E-2 for 3 years and 17 weeks contractual commitment. The applicant completed required training and was award military occupational specialty 11B (Infantryman). He was first stationed at Camp Casey in South Korea and then relocated to Fort Benning, Georgia. During this period he was single as shown on his DD Form 93 (Record of Emergency Data). 4. He served in Iraq in support of Operation Iraqi Freedom during the period from 3 October to 6 December 2009 as shown on his DD Form 214 and Enlisted Record Brief. A second DD Form 93 filed in his official military personnel record, dated 19 November 2009, shows he had married and was assigned to the Warrior Transition Unit at Fort Benning, Georgia. 5. Within his official military personnel record are military police reports showing on 16 January 2010 he and his spouse had a domestic quarrel. He was advised of his rights as documented on a Rights Warning Statement which shows he agreed to be questioned concerning an assault consummated by battery and damage to private property. He states in a sworn statement that his spouse hit him on the forehead after he accused her of taking his prescribed pain medication. He stated she had earlier tried to overdose by taking his personal medications. He stated he did not put his hands on her during the verbal altercation. He did acknowledge hitting a wall in their residence. His spouse also completed a sworn statement stating she could tell they were going to have an argument because they always seemed to be (verbally) fighting. She told him she was tired of the arguing and wanted to return to her home in Florida. He told her he wanted a divorce. He became very angry while she was packing and he grabbed her by her arms and threw her onto their bed. She tried to get up but he restrained her. She eventually got herself out of his grip and then he started to throw household objects at the wall. As she tried to leave the house, he grabbed her and threw her down onto the couch using his hands to cover her mouth. She struggled to breathe. He finally let her go and she coughed and gagged until she got her breath back. She left the house and ran to get help. 6. On 15 April 2010 a second set of military police reports and sworn statements show the applicant and his spouse were involved in a verbal altercation which became physical when he again pushed her down. His spouse retaliated and struck him on his face with her an open hand in an attempt to knock a cell phone out of his hand. Both the applicant and his spouse were apprehended by the military police and advised of their rights concerning an assault consummated by battery. His spouse waived her rights and rendered a sworn statement denying the allegations against her and she was released. The applicant’s unit was contacted and he was released by military police to the control of his unit. Upon reviewing the evidence, the spouse departed the area and returned to Florida. 7. On 19 April 2010 the applicant was counseled by his rear detachment commander regarding the two incidents documented in the military police reports. The rear detachment commander said the applicant was charged under the provisions of the Uniform Code of Military Justice (UCMJ), Article 128 for simple assault consummated by battery on two separate dates and violating UCMJ, Article 134 for two counts of spouse abuse. (There is no statement of charges for court-martial filed in his record.) He was informed he would receive nonjudicial punishment under the provisions of UCMJ, Article 15 and administrative separation proceedings would be initiated under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14 for misconduct. He was informed he would undergo a mental status evaluation, physical examination and educational counseling as part of the separation process. 8. On 21 April 2010 the applicant underwent a mental status evaluation as required by the separation regulation. The applicant indicated he understood why he was being evaluated and he agreed to undergo the examination. A licensed clinical social worker conducted the examination finding no overt psychiatric conditions were recorded in his medical records. There was no indication he was suffering from traumatic brain injury (TBI) or post-traumatic stress disorder (PTSD). He was mentally responsible, able to distinguish right from wrong and to adhere to the right. He was psychologically cleared for any administrative actions deemed appropriate by his command. 9. On 19 May 2010 the applicant accepted nonjudical punishment for assaulting his spouse on 16 January 2010. He did not demand trail by court-martial. His hearing was closed and he did not request someone to speak on his behalf. He acknowledged and it is recorded on a DA Form 2627 (Record of Proceedings under Article 15, UCMJ) that he was guilty of some of the specifications. He said he was not guilty of the offenses that occurred on 16 April 2010. His punishment consisted of reduction to private first class/pay grade E-3, forfeiture of $906.00 per month for 2 months which was suspended, extra duty and restriction for 45 days. He did not appeal. 10. He underwent a medical examination showing he had temporary profile restrictions for his upper body physical profile factor with a rating of "U3." He had undergone (right) rotator cuff surgery on 16 March 2020 after injuring it during physical fitness training. His medical examiner also noted he had an adjustment disorder and apparently was being seen by a private behavioral health provider who prescribed him medication. He self-reported he stopped taking the medication. He also was enrolled in the military family advocacy program. 11. On 21 May 2010 the applicant's immediate commander notified him of his intent to initiate separation action against him for commission of a serious offense in accordance with Army Regulation 635-200, paragraph 14-12c. The factual reasons listed within the memorandum include the 16 January and 15 April 2010 offenses of spouse abuse and simple assault consummated by battery. He also failed to comply with the nonjudical punishment by failing to report for formation and extra duty on two occasions. The commander recommended he receive a general, under honorable conditions characterization of service. He was advised of his rights: * to consult with an appointed counsel and/or a civilian counsel at no expense to the government * to submit written statement on his behalf * to obtain copies of all documents sent to the separation authority * to waive his rights in writing and withdraw any such waiver prior to the date the separation authority orders, directs, or approves his separation * to undergo a complete medical examination and mental status evaluation 12. The applicant acknowledged receipt of the commander's intent to separate him on 8 June 2010. He subsequently consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him. He further acknowledged that he: * would submit statements on his own behalf * requested counsel * understood he could expect to encounter substantial prejudice in civilian life if a discharge under honorable conditions (General Discharge Certificate) 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 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 13. The applicant requested an Honorable Discharge Certificate. He has a family tradition of service in the military. He restated his military history including completing two 25 mile road marches. While stationed at Camp Casey he was awarded three Army Achievement Medals. Two of the medals were for his shooting expertise and the third was his permanent change of station award. He deployed twice. From his experiences as a Soldier he learned he could accomplish many things. He states he never received a negative counseling statement until he was redeployed and assigned to a rear detachment unit. He had injured his right should while doing pushups before deploying and then aggravated it while deployed. He was sent back to the rear because of his shoulder injury. When he was home he and his wife had a domestic dispute. She tried to overdose on his Percocet pain medication. He called the military police for help. When the military police arrived his spouse told them he had put his hands on her. He was shocked because she had no marks on her. He acknowledges they got into a second argument months later when he was talking to his mother on the phone. His spouse punched him in the mouth while trying to grab the phone from his hand. He called a friend to help him because he wanted a witness to support him. She became frantic and threw things everywhere. At some point the military police arrived and saw he had a busted lip. His spouse again said he had put his hands on her a second time. This time she was arrested for aggravated assault, battery and domestic violence. 14. He continued his statement saying when he returned to work after his shoulder surgery he was forced to complete manual tasks requiring the use of his shoulder. He had a profile limiting his abilities to move heavy objects. His senior noncommissioned officers (NCOs) did not comply with the physical profile instructions. They would admonish him. Now he finds he has been mistreated by his chain of command who gave him nonjudicial punishment for the dispute he had with his wife. He acknowledged he was on a lot of medications which was an extremely potent cocktail of medications that interfered with his memory. He argues the reason he is being separated is because he went to the Inspector General and his United States Senator for help. He personally authenticated his statement. 15. Subsequent to his acknowledgement and consultation with counsel, his immediate commander initiated separation action against him due to commission of a serious offense under the provisions of Army Regulation 635-200, paragraph 14-12c. His immediate commander recommended he receive an under honorable conditions characterization of service (General Discharge Certificate). He further acknowledged the applicant had undergone the required mental and medical evaluations with the medical providers stating he met the retention standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 clearing him for administrative processing from the Army. 16. On 15 June 2010 the separation action was found to be legally sufficient. 17. On 16 June 2010, the intermediate commander recommended the applicant be separated prior to his expiration of his term of service with issuance of a General Discharge Certificate. 18. On 16 June 2010, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200. He directed the applicant receive a service characterization of under honorable conditions and furnished a General Discharge Certificate. Separation orders were subsequently issued to the applicant. 19. The applicant’s Enlisted Record Brief filed within his military personnel record shows the following pertinent information: * OS [Overseas]/Deployment Combat Duty in Iraq for 2 months from 3 October 2009 to 6 December 2009 * Awards and Decorations * Army Achievement Medals two (2) * National Defense Service Medal (1) * Global War on Terrorism Service Medal (1) * Army Service Ribbon (1) * No military education showing completion of the parachutist course * No additional skill identifier showing award of the Parachutist Badge or "P" 20. There are no award or badge orders filed in his electronic military personnel record. 21. On 14 July 2010 his DD Form 214 confirms he was discharged for commission of a serious offense (Separation Code JKQ), under the provisions of Army Regulation 635- 200, paragraph 14-12c, with his service characterized as under honorable conditions (general). He completed 2 years, 6 months, and 6 days of net active service this period. The only deployment to a combat area shown on his DD Form 214 is Iraq from 3 October 2009 to 6 December 2009. Block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows the following: * Army Achievement Medal 2nd Award * National Defense Service Medal * Global War on Terrorism Service Medal * Army Service Ribbon 22. 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, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable condition 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. 23. The applicant applied to the Army Discharge Review Board (ADRB) on 26 October 2015 for a review of his discharge. The applicant contended in his ADRB application that he had diagnoses of adjustment disorder and depression while he served on active duty. The VA rated him at 90 percent and the SSA rated him at 100 percent. During the ADRB process, a medical officer reviewed the applicant’s record and stated the applicant did have the diagnoses of adjustment disorder and depression while on active duty. The medical officer said the applicant screened negative for TBI and PTSD. A review of his VA records at the time showed he had a diagnosis of PTSD for which he was rated at 50 percent. The medical officer stated in effect during the ADRB proceedings the applicant’s PTSD is mitigating for some, but not all, of his offenses. PTSD is associated with avoidant behaviors so there is a likely nexus between his PTSD and failing to report for extra duty and formations. However, the medical officer opined PTSD is not mitigating for the offenses of spousal abuse, simple assault and battery. 24. On 15 February 2017 the ADRB voted to deny the applicant’s request to upgrade his characterization of service to fully honorable finding the separation was both proper and equitable. 25. 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 post-traumatic stress syndrome; 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. 26. 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 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. 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. 27. In support of his application he provided a VA payment summary dated 30 October 2007 showing his monthly entitlement amount, its effective payment start date and the reason provided was due to individual employability adjustment. The SSA document he provides contains no personal information showing at what rate the applicant receives benefit compensation from the SSA. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service to include a deployment, the frequency and nature of his misconduct and the reason for his separation. The Board considered the review and conclusions of the medical advising official during the ADRB consideration as well as the applicant’s VA and SSA ratings. Considering the above, the Board found insufficient evidence of in- service mitigation to overcome the applicant’s serious misconduct and 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 character of service the applicant received upon separation was not in error or unjust. The Board concurred with the correction stated in the Administrative Note(s) below. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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, except for the correction stated in the Administrative Note(s) that follow, 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. ADMINISTRATIVE NOTE(S): The applicant served for more than 30 days in Iraq in support of Operation Iraqi Freedom during the named campaign Iraqi Sovereignty (1 January 2009-31 August 2010); therefore, his DD Form 214 for the period ending 14 July 2010 requires administrative correction by adding the Iraq Campaign Medal with one bronze service star to Block 13. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3 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. Chapter 5, Section II (Secretarial Authority), states the separation of enlisted personnel for the convenience of the government is the prerogative of the Secretary of the Army. b. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Soldiers against whom charges will not be referred to a court-martial authorized to impose a punitive discharge will be processed for separation under this chapter. The term "processed for separation" means that separation action will be initiated and processed through the chain of command to the separation authority for appropriate action. Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for serious misconduct. c. 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. d. 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. 3. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. * SPD JKQ is code for Soldiers separating under paragraph 14-12(c) of Army Regulation 635-200 by reason of misconduct * SPD KFF is the current code for use directed by the service secretary under the provisions of Army Regulation, Chapter 5, Section Il 4. Army Regulation 635-8 (Separation Processing and Documents) prescribes policy and procedural guidance relating to transition management. It consolidated the policies, principles of support, and standards of service regarding processing personnel for transition. The DD Form 214 is a summary of the Soldier’s most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior action, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The DD Form 214 is not intended to have any legal effect on terminations of a Soldier’s service. When separation is ordered, the separation approval document must be present for transition processing these included the Enlisted Record Brief or Officer Record Brief, separation approval documents, separation orders and any other document authorized for filing in the personnel records. a. For Block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) list all federally recognized awards and decorations for all periods of service. Do not use abbreviations. Do not enter foreign or State level awards. b. For Block 14 (Military Education) list all formal, in-service (full time attendance) training courses successfully completed during the period of service covered by the DD Form 214 of at least 1 week or 40 hours duration. This information is to assist the Soldier in job placement and counseling; therefore, do not list training course for combat skills. When in doubt, refer to the American Council of Education’s Guide to the Evaluation of Educational Experienced in the Armed Service for commonly accepted course titled to determine its usefulness to the Soldier after transition from the Army. Acceptable sources document include the enlisted record brief, DA Form 4037 (Officer Record Brief), DA Form 1059 (Service School Academic Evaluation Report) or other military issued certificate of completion with from and through dates or number of weeks shown on the certificate. 5. Army Regulation 600-8-22 (Military Awards) states awards made by the President, the Secretary of Defense, and the Secretary of the Army are announced in Department of the Army General Orders. Awards of decorations and the Army Good Conduct Medal will be announced in permanent orders by the appropriate awards approval authority. Service medals and ribbons are administratively awarded to individuals who meet the qualifying criteria. a. The Army Commendation Medal may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguishes himself or herself by heroism, meritorious achievement, or meritorious service. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. b. The Army Achievement Medal is awarded to members of the Armed Forces of the United States, who while serving in a noncombat area on or after 1 August 1981, distinguished themselves by meritorious service or achievement. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. c. The basic Parachutist Badge requires that an individual must have satisfactorily completed the prescribed proficiency tests while assigned or attached to an airborne unit or the Airborne Department of the Infantry School or have participated in at least one combat parachute jump. d. The Iraq Campaign Medal is awarded to members who have served in direct support of Operation Iraqi Freedom (OIF). The Iraq Campaign Medal period of eligibility is on or after 19 March 2003 through 31 December 2011. Service members must have been assigned, attached, or mobilized to units operating in the area of eligibility for 30 consecutive days or for 60 non-consecutive days. A bronze service star is authorized for wear with this medal for participation in each credited campaign. Approved campaigns include the Iraqi Sovereignty (1 January 2009-31 August 2010). 6. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180012753 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1