ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 January 2020 DOCKET NUMBER: AR20190000162 APPLICANT REQUESTS: The applicant requests an upgrade of his characterization of service from general under honorable conditions to fully honorable and change the narrative reason from "Pattern of Misconduct" to "Secretarial Authority." APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) in lieu of a DD Form 149 (Application for Correction of Military Record) * Personal Statement * Petitioners Brief * Separation Packet * Request for Deferment of Separation Orders * Mental Evaluations (x2) * Leave and Earnings Statements (LES) (x4) * Development Counseling Forms (x3) * Army Commendation Medal (ARCOM) Certificate * Enlisted Record Brief (ERB) * Medical Records (9 pages) * Department of Veterans Affairs (VA) Medical Records (11 pages) * Department of Defense (DOD) Guidance for Discharge Review Boards (DRB) * New Counsels Address 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. 1 2. In a personal statement the applicant indicates he served in the Army for 3 years and 6 months. Additionally, he states: a. He was an infantry Soldier and he was fortunate enough to serve in Iraq for one of those years. Most would consider his childhood "untraditional." As a child he was bounced between different foster families until he was ultimately adopted. He was led to believe that his birth father was incarcerated and his birth mother was deceased. Shortly before his 19th birthday, he left for Army basic training in search of stability and a new family. After initial training, he was sent to Fort Stewart, GA, and learned that his unit had already deployed to Iraq. b. He left Georgia and within 5 months of joining the Army he was serving in Iraq as an infantry rifleman. While in lraq he had an unexpected and unprovoked run-in with specialist who instructed him to run from the T-Walls to the “HESCO Barriers,” (approximately 100 meters). He was ordered to do this several times for approximately 10 minutes. At one point he brought out another Soldier, who was unknown to him to perform the same task. After approximately 27 times, the specialist discontinued the exercise calling it "too easy." then ordered him and the other Soldier to carry him on a litter while performing traditional grass drills, lifting the litter overhead, and lowering it to waist level. It became humiliating and after 30 re-petitions, muscle fatigue evolved into muscular failure. He thought actions were unlawful and he was going to report him. (1) He left to look for the sergeant of the guard. chased after him and when he did not stop he grabbed the chinstrap on his combat helmet. During the struggle his helmet came off. He continued running and his head hit a concrete wall at full force. Only then did stop the pursuit. He described the incident to his chain of command and no action was taken against. This caused a loss of trust and respect for the chain of command and has created post traumatic stress (PTSD) for him since the incident. (2) He was seen as an outcast and he was continuously harassed after his return from deployment. Additionally, his birth parents reached out to him on social media and his entire belief system was shattered. Everything he was told as a child turned out to be a lie. This coupled with the events in Iraq sent him into a downward spiral of distrust of authority. His mental health and ability sleep continued to decline until he made a desperate call for help. c. Medical providers prescribed him medication for anxiety and insomnia. The medication made it impossible for him to get up once he was asleep. This led to formal counseling deprivation of liberties and pay, and worsened his mental state. He received no pay for nearly 4 months. Without a support structure or a reasonable opportunity to rehabilitate his mental health deteriorated. He could not afford basic hygiene items, or haircuts. During several of the formal counseling sessions, he expressed his concerns to his supervisors and pleaded for mental health counseling. Eventually, he was discharged. d. Additionally, there is one last incident in his record he would like to explain. While living off•post with his soon to be ex-wife. She hosted a party with several of her friends at their residence. As she became intoxicated, she grew more violent and hit him several times. Refusing to provoke her further, he called the local police. The police arrived and his ex-wife and her friends told a different story, they said he was the one hitting her. The police arrested him for domestic violence. His ex-wife refused to appear in court and to press charges. Therefore the charges were rightfully dismissed. e. Since being discharged he has struggled to maintain employment despite his best efforts to reintegrate into civilian life. He has sought treatment for PTSD from the VA and has recently been awarded sole custody of his daughter. An honorable discharge will afford him the opportunity to pursue higher education through the use of the GI Bill. His ultimate goal is to provide a better life for his daughter and to become a productive member of his community. Through continued treatment and furthering his education, he knows he can do that. He prays the Board will grant him a discharge upgrade. f. In a Brief for the Petitioner the applicant’s counsel states, the applicant’s service includes a combat deployment to Iraq. Currently, he has a general discharge which restricts his potential for future success to include education benefits. He petitions the Board to conduct a records review based on the documentation contained in his military personnel record, military medical record, VA medical record, and the additional evidence provided. He also requests that the Board change the narrative reason for separation from "pattern of misconduct" to "Secretarial Authority" and upgrade his discharge from general to fully honorable based on his otherwise impressive record, his positive post service character and behavior, and that his diagnosis of PTSD be considered as a mitigating factor. (1) Part I - Introduction: Since 11 September 2011, two million Americans have volunteered to serve in our military during a time of war. Many of those have deployed in support of our nation's security to Iraq and Afghanistan or both. PTSD has been diagnosed in twenty percent of Operation Iraqi Freedom veterans. Many more go on suffering, undiagnosed, and without proper treatment. Although the military is making efforts to remove the stigma that attaches to Soldiers seeking help for PTSD, it is well understood that at the "Soldier" level, the stigma still persist, especially in infantry units. (a) Our active duty military makes up less than one-half percent of our nation's population. Just over seven percent of the entire population has ever served in the military and just over 5 percent of the population are "war time" veterans. Everyday life for our wartime veterans is vastly different from the remaining ninety-five percent of our nation's population. They carry with them the "invisible wounds of war" that inherently comes with being a combat veteran. We owe these select few, not only a debt of gratitude, but a duty of care to ensure their future success. A young man [the applicant] sought out the Army to escape an abusive childhood in search of stability and a sense of family. His record of service illustrates an outstanding Soldier who deployed to lraq and returned a traumatized Soldier with debilitating PTSD. (b) Despite the stigma, the applicant made the desperate decision to seek help. He was subsequently prescribed medication for depression, anxiety, and insomnia. This alleviated some of the symptoms from which he was suffering, however, his chain of command failed to understand the effects of the medication or even the severity of his symptoms. His characterization of service continues to adversely affect him despite his attempts to move forward. (2) Part II - Facts and Background: The applicant joined the Army in July 2009, and after more than 3 years of faithful service he was ultimately discharged against his wishes in January, 2013. He served as an infantryman. He volunteered to join his unit in Iraq within 5 months of entering the Army. His military awards include the ARCOM, Iraq Campaign Medal (ICM) (with campaign star), National Defense Service Medal (NDSM), and Overseas Service Ribbon (OSR). Midway through the deployment, he was assaulted by an immediate supervisor when he refused to continue to obey what he considered to be an unlawful order. He reported the incident to a noncommissioned officer (NCO), but ultimately nothing substantial resulted from his report. This incident began what would later become a trend of his chain of command's failure to address key issues, which led to his ultimate distrust of superiors. After he reported the incident he quickly became a target for bullying within the unit. (a) As a result of the bullying, he lost confidence in superiors, and battling the emotional effects of combat. His transition back to Fort Stewart from Iraq was not easy. He quickly began to experience the symptoms of PTSD such as insomnia, anxiety, depression, and increased alcohol use. In desperate need of sleep, he sought out medical assistance and was eventually prescribed Doxepin for insomnia, and Hydroxyzine, and Citalopram, for anxiety. Both Doxepin and Citalopram cause drowsiness as a side effect. The prescription medications noted above caused him to oversleep and fail to report to his assigned place of duty on several occasions. There was a missed opportunity and even a responsibility of his chain of command to determine the underlying cause for the misconduct; however, they chose to simply punish him for the misconduct, repeatedly, in the same manner, for the same offense and yet expect a different outcome. Eventually, he was ordered to perform additional duty, placed on restriction, and his pay was suspended. (b) He did not receive pay for the months of October, November, December (2012), and January (2013). As early as July of 2012, he was pleading with supervisors for time to schedule an appointment with Behavioral Health (BH), which does not appear to have been immediately honored. A month later, he had an appointment with BH and ensured that his leadership was aware of his concerns for his mental well- being. At that time his chain of command had actual knowledge that he was struggling with mental health issues. In early September 2012, he was noted as having an "anxiety disorder" and "homicidal thoughts." During the same exam, the provider noted that he had scored positive for PTSD. Despite these findings, and the prescriptions for depression, anxiety, and insomnia, he was forced to perform extra duty until 2300 hours, guaranteeing his failure to report to morning formations. Instead of addressing his mental health, his leadership assured that his struggles would only worsen. As expected, the restrictions, extra duty, and lack of pay only exacerbated his anxiety, depression, insomnia, and overall mental health. (c) Like many junior enlisted Soldiers, he relied solely on his monthly pay to cover the costs of basic necessities. With little to no savings and no family support, within weeks he was deprived of the funds to meet the basic human hygiene necessities and regulation haircuts. It was a humiliating experience when his leadership ordered another Soldier in his unit to ensure that he received the necessary haircuts to comply with regulations. As a result, he was shunned and further bullied by his peers. As a result of the continued misconduct of missing formations, he was ultimately discharged for a "Pattern of Misconduct." The reasons noted for the administrative discharge was failure to go to his appointed place of duty, being disrespectful to an NCO, and arrest for simple battery. Of the three reasons, listed, the first two are directly related to his chain of command's inability to appropriately respond to his deteriorating mental health and PTSD. As to the third reason, "arrest for simple battery," he was merely arrested, never charged or prosecuted because the allegations could not be substantiated. The Army, however, chose to weigh all the evidence and any possible inference in a light most unfavorable to him, and ultimately discharged him, broke and broken. (3) The Applicant’s Civilian Life: Despite his best efforts, he has struggled during his transition to civilian life. He was diagnosed with PTSD by a VA medical provider and treated with prescription medications. Though the medications have helped, he has struggled to maintain employment. Nevertheless, he refuses to succumb to the debilitating symptoms and consistently seeks self-improvement. In his efforts to continuously improve his situation he is actively pursuing VA benefits and hopes to obtain his GI Bill education benefits. Furthermore, he was recently awarded full custody of his daughter. (4) Part III - Argument: The applicant humbly requests that his discharge be changed from "general, under honorable conditions" to fully "honorable" as a matter of equity and that the narrative reasoning for discharge be changed from "pattern of misconduct" to "Secretarial Authority. " (a) Mitigating Factors: The applicant requests an honorable discharge as a matter of equity. Specifically, he had a diagnosis of PTSD and depression and the military failed to attempt to properly rehabilitate him. (b) Analysis: When deciding retention or separation the following factors from the Soldier's military history are to be considered which include training and potential for further service, past contributions to the Army, assignments, awards and decorations, evaluation ratings, and letters of commendation, memoranda of reprimand or admonition, counseling records, nonjudicial punishments, records of conviction by court- martial, and records of involvement with civilian authorities, and any other matter deemed relevant by the board or the separation authority, including specialized training, duties, and experience of persons entrusted by this regulation with making recommendations or decisions on separation or retention. (c) He asserts that his command, in a hasty effort to remove him from the Army failed in their duty of applying due diligence in considering the factors above as instructed by AR 635 -200. In doing so, the command failed to exercise complete discretion, which proved prejudicial to him and prevented him from receiving a fair and just consideration. (d) His military medical record suggests he was not an insubordinate Soldier, but one suffering from PTSD, depression, and anxiety. Despite scoring positive for PTSD in one exam, he was denied the consideration thereof during his discharge procedure. (e) Had the proper treatment along with proper support structure been provided, rather than a deprivation of pay and liberty, he may have otherwise proven to be a valuable Army asset. He completed an overseas combat deployment to Iraq within 5 months of joining the Army and notably received the ARCOM as a junior enlisted Soldier. In sum, his discharge should be upgraded to honorable on the grounds of equity. (f) The command team failed to exercise sound discretion when they made an arbitrary and capricious decision without considering his underlying medical diagnoses and medical prescriptions. (5) PTSD as a Mitigating Factor: In September, 2014, the Secretary of Defense, Chuck Hagel provided guidance to the Military Boards for Correction of Military Records considering upgrade requests by Veterans claiming PTSD. On August 25, 2017, the Under Secretary of Defense, released a Memorandum (memorandum) to each branch clarifying guidance to the respective Discharge Review Boards. In this guidance the Under Secretary specifically addressed Veterans with mental health conditions that were not diagnosed until years later to include PTSD. The guidance poses four questions typically involved in requests for discharge relief: * Did the Veteran have a condition or experience that may excuse or mitigate the discharge? * Did the condition exist/experience occur during military service? * Does that condition or experience actually excuse or mitigate the discharge? * Does that condition or experience outweigh the discharge? (6) The guidance also states that liberal consideration will be given to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD. (7) Analysis: The applicant asserts that each of the questions above may be answered in the affirmative, as to: (a) The first question, in the paragraph above, the guidance affords that absent clear evidence to the contrary, a diagnosis rendered by a licensed psychiatrist or psychologist is evidence the veteran had a condition that may excuse or mitigate the discharge. The applicant affirms that he has been diagnosed with PTSD by a VA mental health provider. (b) The second question, the guidance postulates that a diagnosis made by the VA that a veteran's mental health condition, including PTSD is connected to military service is persuasive evidence that the condition existed or experience occurred during military service. Here, a VA medical provider stated the applicant’s PTSD is related to his military service. (c) The third question, the guidance stipulates that the conditions or experiences that may reasonably have existed at the time of discharge will be liberally considered as excusing or mitigating the discharge. Here, the applicant was diagnosed with PTSD by the VA after his discharge, however, the condition undeniably existed at the time of his discharge. His military records reflect that he scored positive for PTSD as well as several mentions of PTSD, depression, and anxiety throughout his military medical records. (d) As to the fourth question, the guidance stipulates that, "substance seeking behavior and efforts to self-medicate symptoms of mental health conditions may warrant consideration." Here, the applicant contends he was not self-medicating, but suffering from the side effects of the proper use of prescribed medication. Additionally, in this case the misconduct was not so severe as to outweigh any mitigation. Furthermore, the condition of PTSD and his efforts to seek help and treatment are the proximate cause of the misconduct at issue. The applicant meets all the factors outlined in the Under Secretary's guidance, he humbly requests that his discharge be upgraded to honorable after considering his diagnosis of PTSD as a mitigating factor. (8) In closing, the guidance requires that, "unless otherwise indicated, liberal consideration applies to applications based in whole or in part on matters related to diagnosed conditions, including PTSD... asserted as justification or supporting rationale for discharge relief." The applicant contends that, but for his underlying condition of PTSD/depression/anxiety the misconduct would not have occurred. There is nothing in his military service record to suggest otherwise. Aside from the post-deployment misconduct, he was a stellar Soldier. Lastly, there was no previous history of misconduct prior to the experience that occurred (deployment) reinforces this position. The circumstances at issue warrants that liberal consideration should be given to this application for discharge relief. Part IV – Conclusion: For the forgoing reasons, the applicant humbly requests that the board upgrade his discharge to honorable and change the narrative reason to "Secretarial Authority." 3. On 7 July 2009, the applicant enlisted in the Regular Army for 4 years and 17 weeks. He completed the training requirements and he was awarded military occupational specialty 11B (Infantryman) and he was assigned to Fort Stewart, GA. 4. Between April 2012 and November 2012, the applicant was counseled on 26 occasions by various members of his chain of command to include his commander for various offenses to include, failure to go to his appointed place of duty at the time prescribed on 16 occasions, a pattern of misconduct, separation action, accountability, being disrespectful toward a senior NCO, being arrested for battery, a civilian no contact order, suspension of his pass privileges due to the arrest for battery, and missing a BH appointment (twice). 5. On 29 June 2012, the applicant was command referred to the Army Substance Abuse Program (ASAP) due to his 15 May 2012 alcohol related misconduct and his 29 June 2012 failure to report after he was found passed out in his room, lying in his own vomit. The available records contains no further evidence of the disposition of this this referral. 6. The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on 30 July 2012, for failing to go to his appointed place of duty at the time prescribed on 29 July 2012, 1 May 2012, 30 April 2012 (twice), and 2 July 2012, for using disrespectful language toward the first sergeant on 1 May 2012, and 29 June 2012, for the wrongful overindulgence in intoxicating liquor or drugs, and being incapacitated for the proper performance of his duties. His punishment consisted of reduction to private first class/E3, a forfeiture of $462 pay, and extra duty, and restriction for 14 days. He did not appeal the punishment. 12. A Report of Medical Assessment, dated 28 August 2012, shows he stated his back problems were worse and he had no illnesses to make him miss duty more than 3 days. Since his last medical assessment he had been treated by a healthcare provider for an accidental overdose. He answered Yes to, have you suffered from an accident or injury while on active duty for which you did not seek medical care? He stated, “Shoulder popped out of socket,” and he was taking Doxepin and Citalopram. He answered Yes to, do you have any other questions or concerns about your health, and annotated, “Mental status.” He also indicated it was uncertain as to whether he intended to seek veteran’s disability. 7. On 4 October 2012, he accepted NJP for failing to go to his appointed place of duty at the time prescribed on 23 and 30 July 2012, and on 1 and 7 August 2012. His punishment consisted of reduction to private/E-1, a forfeiture of $745 pay for 2 months, extra duty and restriction for 45 days, and an oral reprimand. He appealed the punishment and he was denied. The proceedings were determined to have been conducted in accordance with law and regulation and the punishment imposed was not unjust nor disproportionate to the offenses committed. 8. On 15 October 2012, the applicant underwent a behavioral evaluation, as a result of his commander’s request, as part of his separation evaluation. The commander stated the applicant failed to take responsibility for his actions. His performance and presentence were marginal. He demonstrated chronic complaining, limited motivation, martial/family problems, difficulty following directions, and difficulty with authority. He had been counseled by his commander, first sergeant, platoon sergeant, the chaplain, the Judge Advocate General, and ASAP. The applicant acknowledged he had been counseled by his commander and the reasons he was being referred to BH had been discussed with him. His commander indicated he did not believe the applicant was suitable for retention. 9. A Medical Report of Examination, dated 25 October 2012, shows: a. He was determined to be qualified for service with a Physical Profile containing P U L H E S of 1 1 1 1 2 1. b. Additionally, this document shows, he was diagnosed as having: (1) bronchitis; (2) concave lenses, “appt 10 Nov 12;” (3) dislocation right shoulder; (4) LBP [low blood pressure]; (5) bilateral shin pain; (6) bilateral foot pain; (7) bilateral knee pain; (8) PTSD, depression, and anger, currently in BH. No associated medical encounters in record for 1, 3, and 7. Recommendation is to continue care with “PCM/BH.” His current medications included Doxepin and Citalopram. c. He answered Yes, to have you ever had or do you have? Bronchitis, worn contact lenses or glasses, knee trouble, and currently in good health. 10. On 7 December 2012, the applicant's commander advised him, via memorandum, of the intent to separate him under paragraph 14-12b (A Pattern of Misconduct), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). The reasons stated for the proposed action were: On or about 30 April 2012, on diverse occasion, 1 May 2012, 29 June 2012, 2 July 2012, 24 July 2012, 30 July 2012, 1 August 2012, 7 August 2012, 7 September 2012, 2 October 2012, 3 October 2012, 5 October 2012, 10 October 2012, on diverse occasion, 11 October 2012, 17 October 2012, 18 October 2012, 19 October 2012, 22 October 2012, 23 October 2012, and 15 November 2012, fail to go to your appointed place of duty. On or about 1 May 2012, on diverse occasion, being disrespectful to a senior NCO. On or about 29 June 2012, for being unable to properly perform your duties, and on 15 May 2012, for being arrested for simple battery. 11. On 7 December 2012, he acknowledged notification. On 17 December 2012, after consulting with counsel, he acknowledged counsel had advised him of the basis for the separation action, and had informed him of his rights and the effect of waiving those rights. The applicant requested representation by counsel and indicated his intent to submit statements in his own behalf; those statement(s) are not available for review. 12. On 19 December 2012, the applicant’s commander recommended separation with a general discharge. 13. On 1 January 2013, he submitted a memorandum for record requesting that his separation from the service be deferred for a minimum of 1 month due to financial issues he was undergoing. He stated he had not received any pay since October 2012, and he was indebted to Navy Federal Credit Union for his vehicle loan in the amount of $405.73, and his bank account was over drafted in the amount of $80. 14. Orders Number 009-0033, from Headquarters, Third Infantry Division, Fort Stewart Fort, Georgia, confirms he was assigned to the Army Transition Point with a reporting date of 17 January 2013. 15. On 28 January 2013, the applicant was discharged under the provisions of chapter 14-12b, due to pattern of misconduct. His DD Form 214 shows he completed 3 years, 6 months, and 22 days of his 4-year and 17-week enlistment obligation. He was awarded or authorized the ARCOM, NDSM, ICM with Campaign Star, and the OSR. 16. On 7 December 2016, the Army Discharge Review Board (ADRB) reviewed his discharge and found it proper and equitable. The ADRB unanimously voted to deny him a change in the character of service and the reason for discharge. 17. The applicant provides a: a. Personal Statement indicating he was prescribed medication for anxiety and insomnia that made it impossible for him to get up once he fell asleep. This led to his misconduct, formal counseling, deprivation of liberties and pay for 4 months, and worsened his mental state which includes PTSD. b. Petitioners Brief states the applicants diagnosis of PTSD should be considered as a mitigating factor. (1) In early September 2012, he was noted as having an "anxiety disorder" and "homicidal thoughts." During the same exam, the provider noted that he had scored positive for PTSD. Instead of addressing his mental health, his leadership assured that his struggles would only worsen. As expected, the restrictions, extra duty, and lack of pay exacerbated his anxiety, depression, insomnia, and overall mental health. (2) He was bullied while battling the emotional effects of combat. His transition from Iraq was not easy, the symptoms of PTSD such as insomnia, anxiety, depression, and alcohol use increased. In desperate need of sleep, he sought out medical assistance and was eventually prescribed Doxepin for insomnia, and Hydroxyzine and Citalopram for anxiety. Both Doxepin and Citalopram causes drowsiness as a side effect. These medications caused him to oversleep and he fail to report to his assigned place of duty on several occasions. (3) His chain of command repeatedly punished him in lieu of determining the underlying cause for the misconduct. His chain of command failed to understand the effects of the medication and the severity of his symptoms. The characterization of his service continues to adversely affect him despite his attempts to move forward. c. Two Reports of Mental Status Evaluation that were done as a part of the separation process showing: (1) On 4 September 2012, he as determined to need further assessment to determine fitness for duty. It was determined that he had no obvious cognition impairments, his behavior was cooperative, his perceptions were normal, he was frequently impulsive, and he demonstrated homicidal thoughts. It was determined that he could understand and participate in administrative proceeding. He was diagnosed to suffer from, “Anxiety Disorder NOS (R/O PTSD).” He was screened for both PTSD and mild traumatic brain injury (mTBI) and was determined to be positive for PTSD and negative for mTBI. (2) On 27 November 2019, he was determined to be fully fit for duty to include deployment and cleared for administrative separation under chapter 14, AR 635-200. It was determined that he had no obvious cognition impairments, his behavior was cooperative, his perceptions were normal, he was unlikely to be impulsive, and he demonstrated no dangerousness. It was determined that he could understand and participate in administrative proceeding. He could appreciate the difference between right and wrong. He met medical retention requirements. He was diagnosed with, “Adjustment Disorder with Anxiety (Per ALHTA records).” AXIS II (personality and intelligence disorders): No Diagnosis. AXIS Ill (medical conditions): No Diagnosis. He was also screened for PTSD and TBI and those conditions were either not present or, if present, did not meet the provisions of AR 40-601 criteria for a medical evaluation board. His chain of command was advised to consider the influence of these conditions, if present when determining final disposition. He was screened for substance use disorders (alcohol and drugs) and he reported smoking one pack of cigarettes a day as well as drinking on social occasions. (3) He was referred for evaluation pending Chapter 14-12c. “SI/HI convincingly denied.” No observed behavioral abnormalities, no evidence of thought disorder or psychotic symptoms. He was mentally responsible, able to distinguish right from wrong, and had the mental capacity to understand and participate in administrative/board proceedings. He met retention standards prescribed in AR 40-501 and there was no psychiatric disease or defect that warranted disposition through medical channels. He reported varied anxiety symptoms while he was being-followed by embedded BH and was scheduled for follow-up tomorrow [27 November 2012]. He was screened for PTSD and mTBI. No evidence of either PTSD or TBI was evidenced at this time. (4) He was psychiatrically cleared for any administrative action deemed appropriate by his chain of command. d. Four LES’s showing his end of month (EOM) pay as $890.04, from 1-30 September 2012, and no EOM pay from 1-31 October 2012, 1-30 November 2012, and 1-31 December 2012. e. Three Development Counseling Forms, dated 2 July 2012, 30 July 2012, and 10 October 2012, showing he was counseled on these dates for failure to be at various appointed places of duty at the time prescribed. (1) On 2 July 2012, the applicant annotated his counseling statement by indicating he had an issue with sleep deprivation and he had spoken with is commander. BH in the past had requested to speak with him and as of 2 July 2012 an appointment had not been setup. (2) On 30 July 2012, he annotated his counseling statement to show that he had an appointment with BH on 6 August 2012 to discuss stress and sleep problems. (3) On 10 October 2012, he annotated his counseling statement to show he had extra duty until 11:00 pm and he knew he could not take sleep medications, because he would not wake up. f. ARCOM Certificate for meritorious service in support of Operation Iraqi Freedom from 1 November 2009 to 1 November 2010. g. Medical Records (9 pages), dated between 20 September 2012 and 25 October 2012: These documents include a: (1) Medical Record for Primary Care Screening showing the applicant answered “Yes,” when asked the following questions: * if within the last 2 weeks had he been feeling down, depressed, or hopeless? * if he had little interest or pleasure in doing things? * If he was constantly on guard, watchful, or easily startled? * If he felt numb or detached from others, activities, or his surroundings? * He screened positive for PTSD and depression * BH appointment scheduled for 21 September 2012 (2) Chronological Record of Medical Care, from BH, dated 21 September 2012, showing he had been four active prescription medications, Hydroxyzine, 25 MG, twice a day for anxiety; Citalopram Hydrobromide, 20 MG, every morning for 10 days then one and one-half every morning for anxiety; Doxpin, 25 MG, 1 tablet at bed time for 4 days, increase to 2 at bedtime if needed for insomnia; and Doxycycline Hyclate, 100 MG, 1 tablet every day, start 2 days before deploying and continue for 4 weeks. (3) Report of Medical History, prepared during his separation processing that shows he was taking Doxepin and Citalopram. He answered, “Yes,” to the following questions: * Have you ever had or have bronchitis? Bronchitis twice in 2009 * Eye disorder or trouble? * Worn contact lenses or glasses? Wear contact lenses * Painful shoulder, elbow, or wrist (pain dislocation, etc.)? Shoulder dislocated in 2012 * Recurrent back pain or any back problem? Back issues since deployment * Foot trouble, knee trouble, and he was currently in good health? Pain in feet and shins since 2011 and knees pop when walking * Pain or pressure in the chest? At night occasional pain in chest * Nervous trouble of any sort? BH prescribed anxiety medication * Frequent trouble sleeping? Prescribed Doxepin by BH * Received counseling of any type? Seeing BH for thoughts of violence, outbursts, and sleep issues * Depression or excessive worry? Worries about everything * Been evaluated or treated for a mental condition? * Have you been treated in an emergency room? h. VA Medical Records (11 pages), dated 2016, confirms the applicant was diagnosed with PTSD. 18. During the applicant's era for service, commanders were to initiate separation action against Soldiers who displayed a pattern of misconduct involving acts of discreditable involvement with civil or military authorities and/or conduct that was prejudicial to good order and discipline. 19. On 22 October 2019, an Army Review Boards Agency (ARBA) psychologist provided an advisory opinion. Following a review of the evidence provided by the applicant, documents from the available service records, and access to the applicant's VA medical records, the ARBA psychologist found that electronic VA medical records indicated the: a. Applicant is registered with the VA and he has received treatment for multiple medical conditions to include lower back pain, adjustment disorder, PTSD, and cervicalgia. The VA awarded him a service-connected disability rating of 70 percent for chronic adjustment disorder. b. After reviewing all of the available information and in accordance with the Secretary of Defense Liberal Guidance Memorandum, dated 3 September 2014, it is the opinion of this official that the applicant has behavioral health conditions, PTSD, and chronic adjustment disorder, which are mitigating factors in the misconduct that led to his discharge. 20. On 24 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 did not respond. 21. The applicants brief contends his chain of command failed to exercise sound discretion when they made an arbitrary and capricious decision without considering his underlying medical diagnoses and medical prescriptions. Prior to discharge the applicant was determined to be qualified to serve and there is no evidence of record that indicates his chain of command acted arbitrary or capricious. 22. He completed 3 years, 6 months, and 22 days of his 4-year and 17-week service obligation. In reaching its determination, the Board can consider the applicant's petition, his submissions, advisory opinion, 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, regulatory requirements, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, and the character and reason for his separation. The Board noted the facts presented above. 2. The Board noted the Board psychologist reviewed all of the available evidence in accordance with the Secretary of Defense Liberal Guidance Memorandum, dated 3 September 2014, determined that the applicant had behavioral health conditions, PTSD, and chronic adjustment disorder which are mitigating factors in the misconduct that led to his discharge. 3. The Board found sufficient evidence of in-service mitigation to overcome the misconduct to justify a clemency determination that the applicant’s character of discharge should be changed to honorable by reasons of Secretarial Authority. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that he was discharged on 28 January 2013 with a character of service as honorable by reason of Secretarial Authoity. X 9/25/2020 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. 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 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. Paragraph 5-3 states, in pertinent part, that the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. Such authority may be given either in an individual case or by an order applicable to all cases specified in such orders. c. Chapter 14, paragraph 14-12b provides for the separation of Soldiers when they have a pattern of misconduct involving acts of discreditable involvement with civil or military authorities and conduct which is prejudicial to good order and discipline. The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of Chapter 14. (1) The separation authority may direct a general discharge if such is merited by the Soldier’s overall record. (2) Characterization of service as honorable is not authorized unless the Soldier’s record is otherwise so meritorious that any other characterization clearly would be inappropriate. A characterization of honorable may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is delegated. d. Chapter 1, paragraph 1-18 waives the rehabilitation transfer because it would not be in the best interest of the Army as it would not produce a quality Soldier. 3. On 3 September 2014, the Secretary of Defense directed the Service 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 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 PTSD; 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 DRBs 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. 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, 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. 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//