IN THE CASE OF: BOARD DATE: 31 March 2020 DOCKET NUMBER: AR20180014512 APPLICANT REQUESTS: * general discharge due to physical disability based on post-traumatic stress disorder (PTSD) * issuance of a DD Form 214 (Certificate of Release or Discharge from Active Duty) reflecting his honorable service from 6 October 1996 through 12 July 2007 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * DD Form 149 (Application for Correction of Military Record) * Enlisted Record Brief (ERB) * DD Form 214, ending 19 June 2012 FACTS: 1. The applicant did not file within the three-year period provided in Title 10, United States 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, in effect, that: a. He caused a motor vehicle accident where an individual died, and as a result he received an under other than honorable conditions (UOTHC) discharge. At the time of the accident, he was driving under the influence (DUI). He accepts responsibility for his actions and the loss of life. However, he was unaware that his deployments to Iraq and Kuwait had caused him to suffer from PTSD. Prior to this incident, he completed 15 years of honorable service and he believes that the military should have provided him treatment for his alcohol dependency and treatment for his mental health issues before discharging him with UOTHC discharge. b. Having his honorable service reflected on a separate DD Form 214 will make him eligible for Department of Veterans Affairs (VA) medical benefits. 3. The applicant's initial enlistment contract is not filed in his military records. His DD Form 214 shows that after completing a period of delayed entry, the applicant enlisted in the Regular Army on 6 October 1996. 4. His ERB shows he completed deployments to Kuwait (23 February 2003 to 31 July 2003) and Iraq (24 August 2008 through 18 August 2009). There are no awards for valor filed in his record. 5. The applicant's record includes the following medical documents: a. A Report of Medical Examination, dated 31 January 2012, completed by the Army physician/examiner, wherein item 77 (Summary of Defects and Diagnoses) and Item 78 (Recommendations –Further Specialist Examinations Indicated), include a diagnosis of PTSD and other medical conditions with a recommendation to follow up with the VA after separation. b. A Command Directed Behavioral Health Evaluation completed prior to separation, which found the applicant: * was fit for duty, including deployment * could understand and participate in administrative proceedings * could appreciate the difference between right and wrong * met medical retention requirements (did not qualify for a Medical Evaluation Board (MEB)) * was diagnosed with Anxiety Disorder, not otherwise specified (NOS) and Depressive Disorder (NOS) * was scheduled follow up appointments for proposed treatment 6. On 3 February 2012, the applicant's first sergeant counseled the applicant that he was being recommended for separation under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14-12c (Commission of a Serious Offense). 7. On 23 February 2012, the Commander, Headquarters, National Training Center, and Fort Irwin, Fort Irwin, CA, issued the applicant an Administrative Reprimand for committing involuntary manslaughter and aggravated assault while driving under the influence of alcohol. This general officer stated the applicant's conduct was reprehensible and his actions completely betrayed the duties and responsibilities of a Noncommissioned Officer (NCO). 8. The applicant acknowledged the Administrative Reprimand on 8 March 2012. 9. On 14 March 2012, his defense counsel requested the General Officer Memorandum of Reprimand (GOMOR) be filed locally so that the applicant could continue his career. His counsel provided rebuttal matters based of the applicant's military career, which included two deployments. His counsel asked for a delay in the filing decision until the conclusion of the applicant's civilian criminal case because he could be acquitted. In such case, making a filing determination now could effectively destroy the career of an innocent man. 10. The applicant responded to the GOMOR in an undated, letter. He conveyed that his problems started on 14 December 2011 when Child Protective Services removed his two sons from the home due to ongoing marital problems. He had to leave his home in order for the children to be returned so he had to live out of his truck. He sought help from his first sergeant, but rather than assist him, he was told to keep the command informed. He asked the deciding official to consider his 15 years of honorable service, which included his two deployments, numerous awards, military training, and civilian education. The accident had devastated him and his family, and he would be haunted by the accident for the rest of his life. His goal was to continue to serve his country. He asked for help to heal his internal wounds, and the opportunity to continue his career. 11. On 15 March 2012, the unit commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14-12c, commission of a serious offense. Specifically, the commander stated the basis for his action was the applicant's reckless conduct that led to the death of an individual and the applicant's pending charges for second degree murder, aggravated assault, and endangerment. His commander recommended the applicant receive a separation UOTHC. 12. The applicant acknowledged receipt of the notification memorandum on 20 March 2012. On the same day, after consulting with counsel, he requested consideration of his case by an administrative separation board, a personal appearance before the board, representation by counsel, and he elected not to submit a statement in his own behalf. He acknowledged that as a result of issuance of a separation under other than honorable conditions, he may be ineligible for many or all benefits as a Veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life. He understood that if he received a discharge certificate/character of service, which is less than honorable, he may make an application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading. 13. On 29 March 2012, the General Court Martial Convening Authority directed the GOMOR be permanently filed in the applicant's Official Military Personnel File. 14. The applicant appeared before an administrative separation board on 5 April 2012. After considering all the admitted evidence, the Board found the applicant engaged in conduct that created grave risk of death and caused the death of an individual. The Board recommended the applicant be discharged from the service with an UOTHC characterization of service, and that the separation be suspended for twelve months, or upon the conclusion of the civilian court, whichever was sooner. 15. The appropriate approval authority approved the Board's recommendation and directed the applicant be separated accordingly. 16. He was discharged by reason of misconduct (serious offense) on 19 June 2012. His DD Form 214 shows he completed 15 years, 8 months, and 14 days of active duty service and contains the following entries in item 18 (Remarks): * "CONTINUOUS HONORABLE ACTIVE SERVICE: 19961006-20070712" * "IMMEDIATE REENLISTMENTS THIS PERIOD – 199906-20020617, 20020618 – 20050524, 20050524 – 20070712, 20070713 – 20120619" 17. On 30 August 2016, the ADRB found the applicant's discharge was proper and equitable and denied his request for an upgrade of his discharge. 18. The applicant did not provide any post service medical records showing a diagnosis of PTSD or other mental health conditions. 19. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations is not service connected for any behavioral health diagnoses. Although the ARBA Medical Advisor applied liberal consideration guidance, the in-service Anxiety Disorder and Depressive Disorder diagnoses, and post-service Mood Disorder and Generalized Anxiety Disorder diagnoses do not mitigate the basis for separation. reports a diagnosis of PTSD from a non-VA provider during his intake at the VA. There is no documentation from a provider regarding a diagnosis of PTSD and in addition, PTSD does not mitigate the basis for separation. On 17 Jul 2008, he was seen by a Family Advocacy Program provider and referred to the Domestic Violence Group. On 3 Feb 2012, he was command referred to behavioral health for a safety risk assessment due to pending legal issues as a result of a DUI incident on 25 Dec 2011 that resulted in the death of an occupant in the other car. In addition, Child Protective Services (CPS) took his stepson away due to spanking him and leaving marks on the child. His wife had stated she must divorce him to get her child back from CPS. He was arguing with siblings on the 25 Dec 2011 about “abusing children” and he was distressed, drank 8-10 beers and drove. The subsequent car accident caused the death of one of the occupants in the other car. The provider diagnosed him with Anxiety Disorder, NOS and Depressive Disorder, NOS, noted he met retention standards from a behavioral health perspective and cleared him for Chapter 14 separation. On 30 Jan 2012, reported having PTSD during his separation physical. However, was treated by behavioral health providers from 3 Feb – 9 May 2012 and no behavioral health provider diagnosed him with PTSD. On 27 Feb 2012, he was evaluated by an Army Substance Abuse Program (ASAP) provider and diagnosed with Alcohol Abuse. continued treatment in the outpatient behavioral health and ASAP clinics with his last appointment on 9 May 2016 and was discharged from the Army 19 Jun 2012. Post-service, he has been diagnosed with Alcohol Dependence in remission, Mood Disorder, Insomnia, Generalized Anxiety Disorder by the VA. is 70% service connected for Intervertebral Disc Syndrome (40%), Limited motion of arm (20%), Migraine headaches (10%), neuralgia of sciatic nerve (10%), and a second neuralgia of sciatic nerve (10%). 20. Effective 1 October 1979, DD Forms 214 are no longer issued for immediate reenlistments. 21. 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 22. 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 regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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 Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards 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. 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 deployments, the frequency and serious nature of his misconduct, the GOMOR and his response, a Command Directed Behavioral Health Evaluation, the contents of his separation packet and the reason for his separation. The Board considered the review and conclusions of the medical advising official regarding his claim of PTSD and the absence of a PTSD diagnosis. The Board found insufficient evidence of in-service mitigation to overcome the 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. 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, 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. REFERENCES: 1. Title 10, United States 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-8 (Separation Processing and Documents) governs the preparation of the DD Form 214. It states for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable,” enter “Continuous Honorable Active Service From” (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). 3. An earlier version of the above regulation (AR 635-5 (Separation Documents) stated that effective 1 October 1979, a DD Form 214 would no longer be issued for immediate reenlistments. 4. AR 635-200 (Active Duty Enlisted Administrative Separations) establishes policy and prescribes procedures for separating members for misconduct in accordance with Chapter 14. 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. 5. AR 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. a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with AR 40-501, chapter 3, as evidenced in a medical evaluation board (MEB); when they receive a permanent physical profile rating of "3" or "4" in any functional capacity factor and are referred by a Military Occupational Specialty Medical Retention Board; and/or they are command-referred for a fitness-for- duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and physical evaluation board (PEB). The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his or her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one- time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 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; 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 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 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// ABCMR Record of Proceedings (cont) AR20180014512 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1