IN THE CASE OF: BOARD DATE: 21 April 2020 DOCKET NUMBER: AR20180013221 APPLICANT REQUESTS: * an upgrade of his general discharge under honorable conditions to honorable * amendment of his narrative reason for separation PPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), undated 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 Army Board for Correction of Military Records (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 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, set 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. Paragraph 3-7a stated 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 stated 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(2) stated Soldiers are subject to action per this section for the commission of a serious military or civil 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. Abuse of illegal drugs is serious misconduct. 4. The Diagnostic and Statistical Manual of Mental Disorders (DSM), chapter 7, addresses trauma and stress or related disorders. The DSM is published by the American Psychiatric Association (APA) and provides standard criteria and common language for classification of mental disorders. a. In 1980, the APA added post-traumatic stress disorder (PTSD) to the third edition of its DSM nosologic classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. From a historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis). The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma." b. The fifth edition of the DSM was released in May 2013. This revision includes changes to the diagnostic criteria for PTSD and acute stress disorder. The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience. The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters: intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity. The sixth criterion concerns duration of symptoms, the seventh criterion assesses functioning, and the eighth criterion clarifies symptoms as not attributable to a substance or co- occurring medical condition. 5. As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis, and treatment of PTSD, the Department of Defense acknowledges that some Soldiers who were administratively discharged UOTHC may have had an undiagnosed condition of PTSD at the time of their discharges. It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldiers' misconduct which served as a catalyst for their discharge. Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from a temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period of time. 6. On 3 September 2014 in view of the foregoing information, 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 UOTHC 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. 7. 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, 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. 8. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to 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. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. 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. 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. FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the 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: a. His discharge was inequitable because it was based on isolated incident in 13 months in Iraq during which he received no other adverse actions. He was punished three times for one incident because his Reserve unit was corrupted. He served three consecutive 45-day restrictions and 45 days of extra duties for failing one drug test when he was using his prescribed pills for battling depression. He didn't know he had PTSD until he was diagnosed after he was discharged. His command labeled it "drug abuse." b. There is no record of him holding military occupational specialty 88M (Armor Motor Transport Operator) and attending advanced individual training at Fort McClellan in Anniston, AL. He did not hold military occupational specialty 92Y (Army Unit Supply Specialist) in his second entry into service. He drove more than 8,000 miles in Iraq. c. His S-1 section lost his file. He was being discharged and the new unit didn't have his current file. He didn't know he could apply for a discharge upgrade until his old noncommissioned officer (NCO) told him about this form last week. All he has is pictures in his M915 (tractor truck) on missions as evidence. d. When his NCO in charge left, his replacement raped a female Soldier in his unit. He spoke up against him to the Inspector General and shortly after, he received his paperwork to get out of the military. This would be the third and final time he was punished for one isolated incident. e. He has never before or after failed a drug test in the Army. He spoke up and was punished after returning from the mental health clinic in Iraq. The only pills he ever had were issued by Army doctors for injuries. He became addicted to Ambien that was prescribed to him over in Iraq because he couldn't sleep, so he stopped taking them. f. His NCO in charge and his battle buddy can confirm his story. 3. His records show he enlisted in the Regular Army on 19 June 1999. He was released from active duty by reason of unsatisfactory performance on 5 July 2001. He completed 2 years and 19 days of active service during this period. His service was characterized as under honorable conditions (general). He was transferred to the U.S. Army Reserve to complete his service obligation. 4. On 14 February 2003, the Army Discharge Review Board (ADRB) denied his request for an upgrade of his discharge. The evidence confirmed his separation processing for misconduct was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. The board determined the reason for discharge and the characterization of service were proper and equitable. 5. He was ordered to active duty as a member of the U.S. Army Reserve on 22 August 2005 in support of Operation Iraqi Freedom. 6. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 31 December 2006 by reason of misconduct (drug abuse) under the provisions of Army Regulation 635-200, paragraph 14-12c(2). He completed 1 year, 4 months, and 19 days of active service during this period. His rank/grade is shown as private first class/E-3 with an effective date of 27 July 2005. His service was characterized as under honorable conditions (general). 8. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military records. The applicant reports he was diagnosed with Major Depressive Disorder (MDD) and on medication prior to his deployment. A review of Armed Forces Health Longitudinal Technology Application (AHLTA), & Health Artifacts Image Management Solutions (HAIMS) indicates he was treated for migraine headache, back strain lumbar, and heat rash while deployed. He was not diagnosed with or provided medication for depression from military providers. On 30 Jun 2006, he completed a separation physical and reported back pain as the only issue of concern. A review of VA’s Joint Legacy Viewer (JLV) indicates he has been diagnosed and treated for MDD, PTSD, and Cannabis Use Disorder. The applicant has a service connected disability rating of 90% with 70% for MDD, 50% for migraine headaches, and 10% for lumbosacral or cervical strain. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017 Clarifying Guidance, PTSD is considered a mitigating factor for substance use. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records, a medical advisory opinion and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the medical records and conclusions of the advising official. The Board found insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided no 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180013221 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1