BOARD DATE: 31 October 2019 DOCKET NUMBER: AR20180015413 APPLICANT REQUESTS: * In effect, upgrade of his dishonorable discharge to honorable * Permission to personally appear before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Two letters of support from family members * Department of Veterans Affairs (VA) Compensation and Pension (C&P) Examinations * Two DA Forms 4187 (Personnel Action) * Two General Courts-Martial Orders; numbered 7 and 20, respectively * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 suffered from undiagnosed post-traumatic stress disorder (PTSD), depression, and schizophrenia during his active duty service; as a result, he had sudden and uncharacteristic behavioral issues. After his separation, medical authority appropriately diagnosed his aforementioned medical conditions, and he is receiving treatment and prescription medications. In addition, he indicates he has, in effect, earned Certificates of Achievement and made significant contributions since his discharge. 3. The applicant provides: a. Two letters of support, respectively written by his sister and mother, in which they affirm the applicant started his military career as a model Soldier and took pride in all he did. Prior to the applicant's Iraq deployment, he married another Soldier and they were expecting a child in March 2003. The applicant's sister notes, in effect, after his return from Iraq, the applicant's behavior changed dramatically. He became more withdrawn and seemed sad; at one point he no longer appeared to be interested in living. The applicant subsequently got into trouble, and his sister opines he just "lost his way." Although the events that followed caused him to lose his marriage, he has since found himself by pursuing a career as a fireman. His mother contends "our Soldiers shouldn't be stigmatized for a mistake made due PTSD." b. VA C&P Examinations, dated between August and September 2014, which reflect diagnoses of PTSD and knee/lower leg medical conditions. c. The applicant's ABCMR application indicated he submitted Certificates of Achievement, but they were not available for review. 4. The applicant's service records show: a. On 12 July 2000, he enlisted into the Regular Army for 3 years. At some point prior to January 2002, orders assigned the applicant to Fort Stewart, GA. On 22 April 2002, Permanent Orders (PO) awarded him the Army Achievement Medal for his duty performance during a Fort Stewart Warfighter Exercise, conducted January to February 2002. On 9 September 2002, and while still at Fort Stewart, he immediately reenlisted for a 3-year term. b. On some date earlier than 5 April 2004, orders reassigned him to Fort Sam Houston, TX. On 5 April 2004, PO awarded him the Army Good Conduct Medal (1st Award) for the period 12 July 2000 through 22 July 2003. c. On 3 August 2005, his Fort Sam Houston unit reported him as absent without leave (AWOL) and dropped him from Army rolls on 3 September 2005. On 10 June 2006, civilian authority arrested the applicant; civil authority returned him to military control, and the applicant was transferred to the U.S. Army Personnel Control Facility at Fort Knox, KY. d. On 17 August 2006, a general court-martial, convened at Fort Sam Houston, convicted the applicant of Uniform Code of Military Justice (UCMJ) violations. (1) Consistent with his pleas, the court found the applicant guilty of the following UCMJ Articles: (a) Article 85 (Desertion) – AWOL, with intent to permanently remain away in desertion, from 3 August 2005 until 10 June 2006 (311 days). (b) Article 107 (False Official Statements) – making a false official statement to Special Agent F_ J__ on 14 July 2005. (c) Article 121 (Larceny) – between May and June 2005, stealing currency from three Soldiers; amounts were over $500 for two of the Soldiers and under $500 for the third. In addition, the charge included one specification of stealing an Enterprise rental car on 3 August 2005. (d) Article 123 (Forgery) – forging three Soldiers' signatures on official military finance forms: one DD Form 2558 (Authorization to Start, Stop, or Change an Allotment), two Standard Forms 1199A (Direct Deposit Sign-Up Form), and two DA Forms 3685 (JUMPS-JSS (Joint Uniform Military Pay System-Joint Service Software) Pay Elections. (2) The court sentenced the applicant to 42 months' confinement, forfeiture of all pay and allowances, and a dishonorable discharge; he was transferred to military confinement that same date. (3) On 2 November 2006, the general court-martial convening authority approved only so much of the sentence as allowed for 30 months' confinement, forfeiture of all pay and allowances, and a dishonorable discharge. With the exception of the dishonorable discharge, the convening authority ordered the sentence's execution, after granting the applicant 69 days of confinement credit. e. On 14 September 2007, the applicant was released from confinement and placed on parole, after serving 12 months and 29 days of his 30-month sentence. f. On 23 January 2008, a general court-martial order announced the completion of the appellate review process and, because the applicant's sentence had been affirmed, directed the applicant's dishonorable discharge; he was discharged accordingly on 27 March 2008. (1) His DD Form 214 shows, after subtracting 900 days of lost time for AWOL and confinement, and having served 1 month and 1 day past his expiration term of service, the applicant had completed his 3-year reenlistment contract. (2) His DD Form 214 does not reflect his honorable service from 12 July 2000 through 8 September 2002, nor does it show his deployment to Iraq. Item 12f (Record of Service – Foreign Service) affirms the applicant served overseas for 5 months and 24 days, but the DD Form 214 gives no indication of the location. (3) He was awarded or authorized: * Army Achievement Medal (3rd Award) * Army Good Conduct Medal (1st Award) * National Defense Service Medal * Global War on Terrorism Expeditionary Medal * Global War on Terrorism Service Medal * Army Service Ribbon * North Atlantic Treaty Organization Medal * Driver and Mechanic Badge with Mechanic Component Bar g. On 25 September 2019, an Army Review Boards Agency (ARBA) psychologist provided an advisory opinion; the advisory cited references that included the Diagnostic and Statistical Manual of Mental Disorders – 5th Edition (DSM-5). (1) A review of the applicant's VA medical records revealed the VA diagnosed him with PTSD, osteoarthritis of the knee, and low back pain, and granted him a service-connected disability rating of 100 percent. (2) The applicant's military medical records showed: * 17 May 2005 – psychiatrically hospitalized for 3 days due to "recurrent depressive episodes and PTSD symptoms" * 17 May 2019 – in an unspecified medical encounter, the applicant stated he was working as a fireman and had no problem performing his duties (3) The ARBA psychologist noted the applicant's records did not show a prior schizophrenia diagnosis, however, the records did support PTSD. His PTSD diagnosis notwithstanding, the applicant's misconduct, involving fraud and theft, was not associated with PTSD; it appeared, instead of being caused by his PTSD, the applicant went AWOL to avoid his crimes. (4) Based on the foregoing, the ARBA psychologist concluded the applicant met medical retention standards, as outlined in Army Regulation (AR) 40-501 (Standards of Medical Fitness) and PTSD is not a mitigating factor for the applicant's misconduct, which ultimately resulted in his conviction by a court-martial and his dishonorable discharge h. On 4 October 2019, ARBA provided the applicant a copy of the advisory opinion for review and the opportunity to submit a statement or additional evidence on his own behalf; he provided the following in response: (1) The applicant wanted to make clear he was, in no way, trying to avoid responsibility for his actions; he simply wanted to point out the facts. (2) He was a very troubled young Soldier from 2003 through 2005. He turned to alcohol after his combat deployment to Operation Iraqi Freedom – 1, and he was going through a divorce. Rather than offering help, his coworkers and supervisors enabled and encouraged his binge drinking. (3) The advisory opinion correctly cites his psychiatric hospitalization in 2005; he was admitted due to suicidal and homicidal ideations. During this period, he was diagnosed with PTSD, major depression, alcoholism, and, he asserts, he showed signs of schizophrenia. The doctors prescribed Zoloft (a medication for treating depression and PTSD) and Seroquel (used for treating schizophrenia and depression). He asserts he did not receive proper medical treatment because he was allowed to check himself out of the facility in just 3 days, even though he had previously admitted to a desire to harm himself and others. Following his release from hospitalization, he received no further follow-up care. The applicant notes his AWOL, starting 3 August 2005, was the second time he left his unit without authority; he is not sure why the first period was not recorded in his records. (4) The applicant contends he was never evaluated as prescribed in AR 40-501; this regulation states mood disorders, such as major depression, depressive disorder, and unspecified psychosis, do not meet medical retention standards. He further asserts due process should have mandated medical authority to conduct a proper evaluation. He contends, while he was on active duty, his conditions would, in fact, have failed medical retention standards; as such, his conditions would have warranted separation through medical channels. According to the DSM, PTSD has numerous symptoms; these include, but are not limited to, self-destructive and reckless behavior. Binge drinking is reckless behavior, and it eventually led him to abuse alcohol. The applicant asserts his belief that, contrary to what the ARBA psychologist stated, his combined medical conditions do mitigate his misconduct. (5) Lastly, he would like to address the medical advisory's reference to a 17 May 2009 medical encounter (listed in the advisory as occurring in 2019). The city fire department where he works is an equal opportunity employer, and his Veterans' status is protected; he is not required to disclose his status as long as his duties can be completed with reasonable accommodations. 5. An email from the Defense Finance and Accounting Service (DFAS), dated 18 October 2019, confirmed the applicant served in a combat zone located in Kuwait from 1 October 2002 to 31 May 2003 (8 months). a. DFAS is considered the authoritative source when determining foreign service credit based on receipt of Hostile Fire/Imminent Danger Pay and Combat Zone Tax Exclusion. However, their system may not show all locations to which a Soldier was sent during this deployment. b. Based upon the documentation provided by the applicant, it is reasonable to presume he served in both Kuwait and Iraq during this period. 6. AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR on a case-by-case basis. 7. The applicant contends he suffered from undiagnosed PTSD, depression, and schizophrenia while on active duty; despite a general court-martial conviction for desertion, fraud, and larceny, his maintains his PTSD mitigates his misconduct that led to his dishonorable discharge. a. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board is not empowered to set aside a conviction, but is only empowered to change the severity of the sentence imposed in the court-martial process. b. In a medical advisory opinion, an ARBA psychologist concluded, while the applicant's record supported the presence of PTSD, this behavioral health condition was not mitigating. c. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 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 to include deployment, the frequency and nature of his misconduct and the reason for his separation. The Board considered the applicant’s PTSD claim, the review and conclusions of the medical advising official, based on available medical records, and the applicant’s response to the advisory opinion. The Board considered the letters from his sister and Mother and the statement regarding his service as a fireman. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by PTSD. 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 concurs with the corrections stated in the Administrative notes below. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. 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: With the exception of the corrections stated in the Administrative Note(s) that follow, 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): 1. As discussed below, amend the applicant's DD Form 214, ending 27 March 2008, as follows: a. delete current entry in item 12f, and replace the entry with "0000/08/00." b. add to Item 18, "CONTINUOUS HONORABLE SERVICE FROM 20000712 TO 20020908//SERVICE IN KUWAIT/IRAQ FROM 20021001 TO 20030531." 2. AR 635-5 (Separation Documents), in effect at the time, prescribed policies and procedures for the preparation of the DD Form 214. The regulation included the following guidance for DD Form 214 completion: a. Item 12f (Foreign Service) was to show all service performed outside the continental United States during the period of the report. b. The regulation mandated the inclusion of specific remarks in item 18 (Remarks): (1) When separating Soldiers received a less than honorable character of service, the regulation required the following entry: "CONTINUOUS HONORABLE SERVICE FROM (first day of service not listed on the DD Form 214) TO (date before commencement of current enlistment)." (2) Item 18 also was required to show periods of deployment: "SERVICE IN (name of country deployed) FROM (start of deployment) TO (redeployment)." 3. DFAS confirmed the applicant's combat service in Kuwait/Iraq from 1 October 2002 to 31 May 2003, a period of 8 months. The applicant's DD Form 214 indicates his foreign service was a term of 5 months and 24 days; the applicant's available service record is void of any documentation supporting this period of foreign service. REFERENCES: 1. Title 10, USC, 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. With respect to courts-martial, and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary's Department may extend only to actions taken by reviewing authorities under the UCMJ or action on the sentence of a court- martial for purposes of clemency. The Secretary of the Army shall make such corrections by acting through boards of civilians within the executive part of the Army. 2. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a stated an honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Paragraph 3-7b stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-10 (Dishonorable Discharge). A Soldier was given a dishonorable discharge pursuant only to an approved sentence of a general court-martial. The appellate review had to have been completed and the affirmed sentence ordered duly executed. 3. 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 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 applicant's service. 4. 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 Discharge Review Boards (DRBs) and Board for Correction of Military/Naval Records (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 Disorder (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 to 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. 5. 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. 6. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings on a case-by-case basis. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180015413 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180015413 11 ABCMR Record of Proceedings (cont) AR20180015413 8