BOARD DATE: 31 October 2019 DOCKET NUMBER: AR20180016795 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 12 October 2018 * applicant's affidavit and counsel's brief * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 6 June 2012 * Department of Veterans Affairs (VA) rating decision * Army Discharge Review Board (ADRB) decisional document FACTS: 1. The applicant states the discharge he received was unjust, given that he was suffering from post-traumatic stress disorder (PTSD) after having been deployed to Forward Operating Base Salemo in the Khost province of Afghanistan for one year. He lived in a combat zone and the environment during his deployment took a huge toll on his psyche. The incident that led to his discharge took place towards the end of his deployment, when the accumulated stress of combat had impacted everyone at the base. He got into a dispute with another Soldier and that Soldier attacked him with his helmet. The applicant reacted in self-defense by readying his weapon, a reaction taught to him by the military. His mind went blank and his instincts took over. He then immediately relinquished his weapon to a third Soldier and went to seek help from a military counselor. He is currently rated as 100 percent disabled by the VA. 2. Counsel outlines the applicant's military history, and expands on both the incident the applicant states resulted in his discharge and on the remainder of his period of active duty and character of service. Counsel contends the discharge was an error and cites the Department of Defense Instruction (DoDI) 1332.28 (Discharge Review Board (DRB) Procedures and Standards). Counsel contends that as a matter of equity, the applicant's post-service conduct should be considered with emphasis on the fact that he has been diagnosed by the VA as suffering from PTSD (100%), has completed an Associate's Degree, and has started his own business. 3. The applicant enlisted in the Regular Army on 30 June 2009. 4. The complete facts and circumstance surrounding the applicant's discharge are not available for review. However, his record contains a properly constituted DD Form 214 that shows he was discharged on 6 June 2012, under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, with his service characterized as under honorable conditions (general). His DD Form 214 further shows: * he was credited with completing two years, 11 months, and seven days of net active service this period * his awards and decorations included the Army Commendation Medal, Afghanistan Campaign Medal, and Meritorious Unit Commendation * he served in Afghanistan from 4 January 2011 to 31 December 2011 * he was separated under the provisions of Army Regulation 635-200, paragraph 14-12c * the cited narrative reason for separation was "Misconduct (Serious Offense)" 5. The VA granted the applicant a 100 percent disability evaluation for PTSD effective 6 April 2016. 6. The applicant petitioned the ADRB for a review of his discharge and possible upgrade of the character of his service. He contended that PTSD led to his discharge; however, the absence of separation documents precluded a medical review vis-à-vis mitigation. After consideration his petition and the available evidence, the ADRB determined his discharge was proper and equitable and denied relief on 13 May 2018. 7. The applicant petitioned the ABCMR, setting forth his contentions as he and his counsel had in his ADRB request. 8. In the processing of this case, an advisor opinion was obtained from the Army Review Boards Agency (ARBA) clinical psychologist. The medical advisor reviewed the applicant's electronic medical records. a. The applicant asserts that his command thought it faster and easier to discharge him for perceived misconduct than to obtain a medical discharge, although believing the applicant believed his command recognized he had mental health issues. b. The available personnel records are void of the separation packet; the basis for separation is unknown. c. The DoD electronic medical record indicates that while deployed, in March 2011, the applicant went to behavioral health stating stress was building due to problems with his platoon and new squad leader. He requested a platoon move, which was declined and he "flipped out." The applicant reported a history of therapy from ages 7 to 14 for ADHD. In August 2011, the applicant was referred to behavioral health after he made homicidal statements about an NCO in front of others; he denied this claim. He was subsequently moved to another platoon and reported improvement. The applicant was diagnosed with an Occupational Problem. d. In January 2012, he reported a "buddy" provoked him by hitting him in the chest with a helmet, leading him to charge his weapon. The applicant reported ongoing anger management difficulties to include hitting objects and breaking things; at one point, he had to get his gun barrel replaced after using it to hit items. The applicant adamantly denied physical aggression toward another person. He denied combat trauma and PTSD symptoms. The applicant reiterated childhood treatment for ADHD adding he was suspended for school several times. He was diagnosed with an Adjustment Disorder. The applicant had a Chapter Mental Status Evaluation in February 2012 and was cleared with enrollment in anger management. e. A review of VA medical records indicates the applicant is 100% service connected for PTSD. In October 2012, the applicant was referred to behavioral health for self-reported PTSD. The evaluator determined he did not meet criteria for PTSD. He was diagnosed with Anxiety Disorder NOS and Primary Insomnia. The applicant did not return for four years. f. In April 2016, the applicant was referred to primary care behavioral health for depression. He reported stress and depression related to attending school full-time, multiple part-time jobs, finances, and his discharge. The applicant reported as a child he was "a wild child" expelled from "every private elementary school in Annapolis," and had "emotional outbursts" resulting in psychiatric and therapeutic care. He discontinued medications in high school, not wanting to be "labeled," but continued to struggle with anger and potentially depression. With regards to his discharge, the applicant reported he was wrongfully punished as "the other person was at fault…he was simply defending himself." He was diagnosed with an Adjustment Disorder and rule out of ADHD with a referral for testing. g. In July 2016, the applicant had a PTSD evaluation that determined he did not meet criteria for PTSD, rather Other Specified Trauma/Stressor Related Disorder. The provider referenced an April 2016 Compensation and Pension (C&P) exam which diagnosed PTSD with 100% service connection; however the provider did not concur. During the evaluation, the applicant stated he charged and pointed the gun at the Soldier during the disagreement. He received medication through August 2017. h. Although the applicant is 100% service connected for PTSD, the basis for separation is unknown as such medically mitigation cannot be determined. If the Board accepts the applicant’s statement he was discharged for charging his weapon at another Soldier, potentially pointing it at the Soldier per VA records, PTSD would not mitigate this misconduct. 9. A copy of the advisory opinion was forwarded to the applicant with no response from either the applicant or counsel. 10. The Board may 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, the nature of his misconduct, his record of service and deployment, the absence of a separation packet and the narrative reason for his separation. The Board considered the applicant’s VA rating and the review and conclusions of the advising official. Absent a separation packet, the Board was unable to determine the specific reason for his discharge, but concurred with the advising official in that PTSD would not mitigate the behaviors the applicant described. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Army Regulation 15–185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. In pertinent part, it states that 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. The ABCMR will decide cases based on the evidence of record. It is not an investigative body. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. b. 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. Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. Paragraph 14-12c (Commission of a Serious Offense) applies to Soldiers who committed a serious military or civilian offense, when required by the specific circumstances warrant separation and a punitive discharge was, or could be authorized for that same or relatively similar offense under the UCMJ. 3. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180016795 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180016795 7 ABCMR Record of Proceedings (cont) AR20180016795 5