ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 16 August 2019 DOCKET NUMBER: AR20180015208 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'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), dated 29 October 2018, with self-authored statement * Table of Contents (labeled as Side 1) * Notification Memorandum, dated 20 May 2015 * Acknowledgement, dated 20 May 2015 * Election of Rights, dated 2 June 2015 * Conditional Waiver, 2 June 2015 * Report to Suspend Favorable Personnel Actions (FLAG), dated 12 December 2014 * Enlisted Record Brief, dated 15 July 2015 * Army Career and Alumni Program * Memorandum for Record, dated 12 June 2015 * Table of Contents (labeled as Side 2) * Battalion Commander Recommendation, dated 10 June 2015 * Company Commander Recommendation, undated * Table of Contents (labeled Side 3) * Medical Evaluation, dated 25 March 2015 * DA Form 3822 (Report of Mental Status Evaluation), dated 23 April 2015 * DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States), dated 6 July 2011 * Criminal Investigation Division/Urinalysis Results (11 pages) * DA Form 2627 (Record of Proceedings Under Article 15 Uniform Code of Military Justice (UCMJ), dated 28 January 2015 * DA Form 4856 (Developmental Counseling Form), dated 12 December 2014 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), 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: a. The events going on in his life led him to experiment with marijuana. He battled with issues of post-traumatic stress disorder (PTSD) for a while before realizing what he was affected with and seeking proper treatment. He was dealing with his issue way back when he tried for a hardship discharge but was denied. He was at a point where he didn’t know what to do and had no one to trust or vent to. He should receive an upgrade to his character of service based on the severity of his PTSD. b. How can a person continue to fail urinalysis dating from 5 December 2014 to March 2015 with no use. What also confuses him is how he was awarded the Army Good Conduct Medal on 23 January 2015, which further shows his conduct and that his command supported him in staying in the military. He was a good Soldier and was not given a second chance to redeem himself after an honest mistake. He just wants to be treated fairly and to receive what he feels he has earned. He successfully completed the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) on 27 March 2015, but was still not considered rehabilitative. c. His expiration term of service was six months away when he was chaptered out. He doesn’t understand why he wasn’t allowed to finish out his time in service to complete his contract. While he was on extra duty he encountered a Soldier from his unit who had committed the same exact offense and that Soldier was only reduced in rank one grade. This Soldier was also allowed to finish the time left on his contract which was only a few months, he was also given an honorable discharge. There was also a female Soldier that was on extra duty who was given the opportunity to regain her rank and stay in. d. It is hard for him to find the equality when it is obvious that he’s not getting the same treatment as other Soldiers. He served his time and served it honorably except for his one screw-up. He served the Army honorably and was not given the chance to redeem himself. His DD Form 214 (Certificate of Release or Discharge from Active Duty) reads that he had minor infractions, meaning more than one offense. To a reader or an employer that is hard to explain. This is clearly misguiding when he was discharged and treated unfairly for only committing a single offense that could have been rehabilitated. e. His review packet states that the incident of his misconduct adversely affected the quality of his service, which is false because he never let up. After his mistake he still completed and passed a physical fitness test and shot expert at the range. There were no signs or proof showing that his mistake had any effect on the quality of his service or duty performance. He received several awards while he was enlisted including the Army Commendation Medal and two Army Achievement Medals. He was a good Soldier and would have become a sergeant had it not been for making a bad decision. 3. The applicant enlisted in the Regular Army on 24 January 2012. 4. The applicant was notified via counseling on 12 December 2014, that he had tested positive for marijuana during a urinalysis administered on 4 December 2014. He was immediately referred to the ADAPCP. 5. The applicant accepted non-judicial punishment, under the provisions of Article 15 of the UCMJ, on 28 January 2015 for wrongful use of marijuana on or about between 5 November 2014 and on or about 5 December 2014. 6. The applicant’s ADAPCP treatment record is not available for review; however, his record indicates he tested positive for cannabis during treatment, on two occasions. He completed the program on 27 March 2015. 7. A DA Form 3822, dated 23 April 2015, shows the applicant was fit for duty and cleared for participation in administrative separation proceedings. 8. The applicant's immediate commander notified the applicant on 20 May 2015 of his intent to initiate separation actions against him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for misconduct – abuse of illegal drugs. The commander cited, as the specific reason for the proposed separation action, the applicant's wrongful use of marijuana between on or about 5 November 2014 and on or about 5 December 2014. 9. The applicant consulted with counsel on 2 June 2015 and was advised of the basis for the contemplated action to separate him and of the rights available to him. He further acknowledged his understanding and elected to provide a statement in his own behalf. The statement is not available for review with this case. 10. The applicant's commander formally recommended his separation from service on 10 June 2015, under the provisions of Army Regulation 635-200, Chapter 14, by reason of misconduct. The separation authority approved the recommended action on 29 June 2015 and directed the issuance of a General Discharge Certificate. 11. The applicant was discharged on 14 July 2015. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - drug abuse. His service was characterized as under honorable conditions (general). His DD Form 214 further shows he was awarded or authorized the following awards throughout his total period of military service: * Army Commendation Medal * Army Achievement Medal * Army Good Conduct Medal * National Defense Service Medal * Global War on Terrorism Service Medal * Army Service Ribbon * Expert Marksmanship Qualification Badge with Rifle Bar (M16) 12. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. On 4 May 2018, the ADRB determined the applicant’s narrative reason for separation was inequitable based on his length and quality of service and the circumstances surrounding his discharge (post service diagnosis of behavioral health). 13. The applicant was issued a new DD Form 214, which confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12a, by reason of misconduct - minor infractions. His reentry code was changed to RE-3 and his separation code to “JKN”. 14. In the processing of this case, an advisory opinion was obtained on 13 June 2019 from the Army Review Boards Agency Medical Advisor/Psychologist. a. The advisory official opined: * the applicant’s medical records do support the existence of PTSD at the time of discharge * the applicant did not have a condition that failed medical retention standards nor is there evidence he was unfit * the applicant’s diagnosis of PTSD is a mitigating factor in the misconduct that led to his separation b. The applicant was provided a copy of this advisory opinion to provide him an opportunity to comment and/or submit a rebuttal. He did not respond. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s 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, the absence of an ADAPCP treatment record, and reason for his separation. The Board considered the prior ADRB decision and the conclusions of the advising official regarding the presence of PTSD, that it was not so severe it failed medical retention standards and that it would mitigate the applicant’s misconduct. The board found no further mitigating factors in this case. Based on a preponderance of evidence, the Board found insufficient evidence to overcome the misconduct and further upgrade the applicant’s discharge. The Board determined that the applicant’s current character of service 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. 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 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 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. Chapter 14 of this regulation 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, conviction by civil authorities, desertion, or absences without leave. 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. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 3. 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, DoD acknowledges that some Soldiers who were administratively discharged UOTHC may have had an undiagnosed condition of PTSD at the time of their discharge. It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldier's 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 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. 4. BCM/NRs are not courts, nor are they investigative agencies. Therefore, the determinations will be based upon a thorough review of the available military records and the evidence provided by each applicant on a case-by-case basis. When determining if PTSD was the causative factor for an applicant's misconduct and whether an upgrade is warranted, the following factors must be carefully considered: * Is it reasonable to determine that PTSD or PTSD-related conditions existed at the time of discharge? * Does the applicant's record contain documentation of the occurrence of a traumatic event during the period of service? * Does the applicant's military record contain documentation of a diagnosis of PTSD or PTSD-related symptoms? * Did the applicant provide documentation of a diagnosis of PTSD or PTSD-related symptoms rendered by a competent mental health professional representing a civilian healthcare provider? * Was the applicant's condition determined to have existed prior to military service? * Was the applicant's condition determined to be incurred during or aggravated by military service? * Do mitigating factors exist in the applicant's case? * Did the applicant have a history of misconduct prior to the occurrence of the traumatic event? * Was the applicant's misconduct premeditated? * How serious was the misconduct? 5. Although the DoD acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge, it is presumed that they were properly discharged based upon the evidence that was available at the time. a. Conditions documented in the record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge; those conditions will be considered potential mitigating factors in the misconduct that caused the UOTHC characterization of service. b. Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of UOTHC. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. c. Correction Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. 6. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, 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. a. 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. b. 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) AR20180015208 4 1