ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 September 2020 DOCKET NUMBER: AR20180014426 APPLICANT REQUESTS: an upgrade of his under honorable conditions discharge to fully honorable. He further request his narrative reason for separation and re-entry code be changed. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter from the Department of Veterans Affairs (VA) * Examination Report 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 he suffered from post-traumatic stress disorder (PTSD) after returning from the Persian Gulf War in 1990. He was 18 years old at the time and the stress of deployment was unlike anything I had had ever experienced. After returning home, he was never offered any medical treatment for PTSD. He believes that would have had a positive impact on him and his military service. 3. The applicant served in Saudi Arabia from 11 January 1991 through 13 May 1991. 4. The applicant accepted non-judicial punishment on the following occasions: * 19 February 1992, for violating a lawful general regulation by wrongfully consuming alcoholic beverages while under the age of 21, operating a vehicle while drunk, and being incapacitated for the proper performance of duty * 6 March 1992, for violating a lawful general regulation by wrongfully consuming alcoholic beverages while under the age of 21 and breaking restriction 5. On 3 March 1992, the applicant underwent a mental evaluation which found the applicant was mentally responsible, able to distinguish right from wrong, and to adhere to the right and has the mental capacity to understand and participate in board proceedings. It was noted the applicant had no mental illness or defect sufficient to war ant disposition through medical channels. He was psychiatrically cleared for any administrative action deemed appropriate by command. 6. On 9 March 1992, the applicant's commander notified him that action was being initiated to discharge him for serious misconduct under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, paragraph 12c for commission of a Serious Offense. The reason for this action was the applicant received an Article 15 for operating a passenger car while drunk. The commander was recommending a under honorable conditions characterization of service. The applicant was advised of his available rights and he acknowledged receipt. 7. On 10 March 1992, after having been advised by his consulting counsel of the basis for the contemplated action to separate him for misconduct the applicant acknowledged he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He also acknowledged that as a result of a discharge under other than honorable conditions he might be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life. He indicated he was not submitting a statement in his own behalf. 8. On 11 March 1992, the appropriate authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for a commission of a serious offense. He directed the applicant be issued a General Discharge Certificate. 9. On 18 March 1992, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c. The narrative reason for separation was Misconduct-Commission of a Serious Offense, his Separation Code was “JKQ”, and his RE Code was 3. He completed 1 year and 9 months of net active service that was characterized as under honorable conditions (general). He was awarded or authorized the following: * Army Service Ribbon * Southwest Asia Service Medal with 3 Bronze Service Stars * National Defense Service Medal * Kuwait Liberation Medal * Army Commendation Medal 10. On 14 June 1995, the Army Discharge Review Board directed the applicant’s narrative reason for separation be changed to Misconduct under the provisions of Army Regulation 635-200. 11. A DD Form 215 (Correction to DD Form 214), dated 14 October 1995, shows the applicant’s narrative reason for separation was changed to Misconduct. 10. His record is void of documentation that shows he was treated for an injury or an illness that warranted his entry into the Physical Disability Evaluation System (PDES). Additionally, there is no indication he was issued a permanent physical profile or underwent a medical evaluation board (MEB) or a physical evaluation board (PEB). 12. On 23 August 2019, the ABCMR obtained an advisory opinion from a Medical Advisor with Army Review Boards Agency (ARBA), who states, in part, review of the applicant’s hardcopy military medical record indicates he received a separation physical to include a mental status examination and was found to meet retention standards. The reviewed documents do support the existence of a behavioral health condition at the time of discharge. The applicant’s diagnosis of PTSD is a mitigating factor for the difficulty with authority, interpersonal conflict, and DUIs but it is not a mitigating factor for driving with a suspended licensed and driving on post once on post driving privileges were revoked. A copy of the complete medical advisory was provided to the Board for their review and consideration. 13. In response to the medical advisory, the applicant states the medical opinion states his PTSD is a mitigating factor for his difficulty with authority. When his driving privileges were revoked by his battalion commander, whom he saw as an authority figure, he quickly rebelled because of his anger and psychological problems. Driving on a suspended license and on post with revoked driving privileges were a direct result of destructive behavior, alcohol abuse and PTSD. If it had not been for these diseases, it is at least likely that his driving privileges would never have been revoked. 14. Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provided that an honorable discharge was a separation with honor and entitled 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. 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 considered 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. 15. Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It states that the SPD code JKQ is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 14, by reason of Misconduct-Commission of a Serious Offense. The SPD/RE Code Cross Reference Table stipulates that an RE-3 code will be assigned to members separated under these provisions with an SPD code of JKQ. 16. Army Regulation 635-200 further states that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve (USAR). Table 3-1 included a list of the RA RE codes: a. RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army. They are qualified for enlistment if all other criteria are met. b. RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. They are ineligible for enlistment unless a waiver is granted 17. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System 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 office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. 18. In reaching its determination, the Board can consider the applicant's petition, his statements, and his service record, in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 2. The Board reviewed the applicant’s contentions and the evidence of record including the ARBA Medical Advisory Opinion and the applicant’s rebuttal. The Board found the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of his under honorable conditions discharge to fully honorable and a change to his narrative reason for separation and re-entry code. 3. With respect to the contention that a discharge upgrade is warranted in the interest of justice and that the applicant’s narrative reason and reentry code should be changed, the Board considered the applicant’s contentions in light of the evidence of record, to include the ARBA medical advisory opinion. The Board agreed with the medical advisory opinion that the applicant’s PTSD does partially mitigate his misconduct, but does not mitigate the remainder of the misconduct – specifically, breaking restrictions, driving with a suspended license and two instances of driving under the influence of alcohol - and an upgrade or change to the applicant’s discharge is 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, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 8/10/2020 X CHAIRPERSON 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): Not Applicable 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, then in effect, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provided that an honorable discharge was a separation with honor and entitled 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. 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 considered 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. 3. Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It states that the SPD code JKQ is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 14, by reason of Misconduct-Commission of a Serious Offense. The SPD/RE Code Cross Reference Table stipulates that an RE-3 code will be assigned to members separated under these provisions with an SPD code of JKQ. 4. Army Regulation 635-200 further states that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve (USAR). Table 3-1 included a list of the RA RE codes: a. RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army. They are qualified for enlistment if all other criteria are met. b. RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. They are ineligible for enlistment unless a waiver is granted 5. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System 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 office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. 6. 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 (TBI); 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. 7. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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 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. //NOTHING FOLLOWS//