IN THE CASE OF: BOARD DATE: 13 October 2020 DOCKET NUMBER: AR20190004337 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20150013537 on 9 June 2016. Specifically, he requests his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 31 January 2019 * his wife's medical records * Medical Command (MEDCOM) Form 699-R (Report of Mental Status Evaluation) dated 19 September 2008 * Department of Veterans Affairs (VA) memorandum, dated 3 November 2010 * VA administrative decision, dated 9 December 2010 * VA compensation and pension exam, dated 16 September 2011 * VA compensation and pension exam, dated 22 November 2013 * VA rating code sheet, dated 31 December 2013 * VA medical treatment records covering the period 21 September 2011 to 2 November 2015 * ABCMR Record of Proceedings, AR20150013537 * lay statements from his brother, two sisters, and his brother & sister-in-law FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20150013537 on 9 June 2016. 2. The applicant states his discharge is fundamentally flawed. He was an exemplary Soldier who was mentally and physically affected by his time in Iraq. Upon returning to Fort Hood, TX in 2006, he was assigned to the 151st Warrior Transition Battalion and entered the Wounded Warrior Program. While in this unit, his life and career rapidly and unnecessarily spiraled out of control. The evidence provided shows his problems began after his return from Iraq and there is no evidence to show his problems were persistent throughout his entire period of military service. His UOTHC discharge cannot be considered willful and persistent as there is enough evidence to show he came back from combat injured and with emotional and physical ailments. 3. The applicant enlisted in the Regular Army on 1 November 2002. He deployed to Iraq from 17 August 2005 to 27 July 2006. 4. The applicant was granted seven days of advanced leave, from 10 June through 17 June 2008, due to his wife's medical issues resulting from child birth. The applicant failed to return to his unit upon the expiration of his authorized leave. 5. The applicant accepted nonjudicial punishment (NJP) on 22 August 2008, under the provisions of Article 15 of the Uniform Code of Military Justice, for being AWOL from on or about 17 June 2008 to on or about 5 August 2008. 6. A U.S. Army Criminal Investigation Command (CID) final report, dated 18 September 2008, shows the applicant and another Soldier were investigated for fraud and forgery in an attempt to steal $300.00 from the Helping Hands Financial Assistance program, a non-appropriated fund managed by the installations chaplain's office. Both Soldiers admitted to being guilty of the misconduct. The available record does not contain any documentation of any final disciplinary action for these offenses. 7. The applicant received 19 negative general counselings between 28 January 2008 and 25 September 2008, for diverse reasons including but not limited to: his NJP for being AWOL for 50 days; numerous counselings for failure to report to duty; failure to make medical appointments; failure to follow orders; and his arrest by the Fort Hood CID office for the offenses of forgery and fraud. 8. The applicant was afforded a mental status evaluation on 19 September 2008. He was diagnosed with general anxiety with mixed moods but it was determined that he met retention standards. He was cleared him to participate in any administrative actions deemed appropriate. 9. The applicant's commander notified the applicant on 6 October 2008 of his intent to initiate actions to separation the applicant from service under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, by reason of misconduct. 10. The applicant acknowledged receipt of the proposed separation notification on an undated form and consulted with counsel on 6 October 2008. He was advised of the basis for the contemplated actions to separate him under the provisions of Army Regulation 635-200, paragraph 14-12c and its effect; of the rights available to him; and of the effect of any actions taken by him to waive his rights. He further acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life if other than honorable be condition discharge, was issued to him. The applicant waived consideration of his case by an administrative separation board, submission of a conditional waiver, and to submit a statement in his own behalf. 11. The applicant's commander formally recommended the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12(c), based on his NJP for being AWOL for 50 days. Additionally, the immediate commander noted the applicant's numerous negative counselings for failure to report to duty; failure to make medical appointments; failing to follow orders; and his arrest by the Fort Hood CID for forgery and fraud. The commander indicated he would recommend the applicant receive a UOTHC discharge. 12. The appropriate authority, on 18 October 2008, approved the applicant's unconditional waiver of consideration of his case by an administrative separation board and directed he be separated under the provisions of Army Regulation 635-200, paragraph 14-12(c), and that his service be characterized as UOTHC. 13. The applicant was discharged on 6 November 2008. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12(c) for commission of a serious offense and his service characterization was UOTHC. 14. The VA afforded the applicant an administrative decision on 9 December 2010, stating the veteran's character of service for the period 1 November 2002 to 6 November 2008, was considered honorable for VA purposes and entitlement was established to all benefits administered by the VA. The individual was found to be entitled to healthcare under Chapter 17 of Title 38, USC, for any disabilities determined to be service-connected for the period 1 November 2002 to 6 November 2008. 15. The Army Discharge Review Board denied his request for an upgrade of his discharge on 1 September 2011. 16. The ABCMR denied the applicant's request for an upgrade of his discharge on 9 June 2016. 17. The applicant provides VA treatment records that show he was treated for several conditions including marijuana abuse, depression, PTSD, intervertebral disc syndrome, limited flexion of thigh, paralysis of external popliteal nerve, limited extension of thigh, and impaired hearing. He is currently rated as 100 percent disabled due to PTSD, with additional ratings for intervertebral disc syndrome, limited flexion of thigh, paralysis of external popliteal nerve, limited extension of thigh, and impaired hearing. 18. The Board should consider the totality of the applicant's period of service, including is deployment to Iraq, as well as his diagnosed PTSD in accordance with the published equity, injustice, or clemency determination guidance. 19. Based on the applicant's contention the Army Review Board Agency medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. MEDICAL REVIEW: 1. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. A review of the Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Management Solutions (HAIMS) indicates he was seen on 13 Feb 2007 due to difficulties with his mother dying during his deployment and losing friends in Iraq. He reported nightmares and increased drinking. He come home on emergency leave but went back a week after her death. On 1 Mar 2007, he was diagnosed with Adjustment Disorder with mixed emotional features and Bereavement. He reported being unable to get past his mother’s death. His last follow up appointment was 24 Apr 2007. 2. On 25 Aug 2008, he was seen for a mental status evaluation due to a pending Chapter 14. He was diagnosed with General Anxiety with mixed moods and found to meet retention standards. The provider recommending postponing administrative separation to allow for a period treatment as the applicant was in the MEB process for a non-behavioral health condition. The applicant was seen again on 19 Sept 2008 for another mental status evaluation. The provider noted the applicant was there under protest. The provider recommended his commander consider 5-17 instead of Chapter 14. 3. A review of VA’s Joint Legacy Viewer (JLV) indicates he received an initial service connected disability rating of 70% for PTSD, 20% for degenerative joint/disc disease, 10% for right hip strain, 10% for radiculopathy in 2010. His disability rating for PTSD was increased to 100% in 2013. The applicant was evaluated twice and met retention standards at the time of his discharge. PTSD is considered a mitigating factor for AWOL but it is not a mitigating factor for fraud and forgery. BOARD DISCUSSION: The Board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and the ARBA Medical Review, and two Board members determined there is sufficient evidence to grant partial relief. The majority agreed with the Medical Review that the applicant’s PTSD partially mitigated the applicant’s misconduct. Furthermore, the majority found sufficient evidence to grant a clemency determination to upgrade the discharge characterization to General, Under Honorable Conditions because the applicant served in Iraq, had served honorably for most of his time in service, and the contemporaneous evidence supports that the applicant’s misconduct was misguidedly motivated by his child’s difficult birth and trying to pay rent and support his family. The dissenting Board member voted to deny relief stating that the applicant’s PTSD only mitigated the AWOL, not the forgery and the fraud and the applicant had over 10 years of active service, more than enough time to know better than to commit fraud and forgery. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to grant partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214, dated “20081106” to reflect his character of service as “General, Under Honorable Conditions.” 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. 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. a. The regulation provides 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. b. A request for a reconsideration will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. Action was to be to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or unlikely to succeed. d. Paragraph 14-12c (Commission of a Serious Offense) applied 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. 5–17. Other designated physical or mental conditions a. Commanders specified in paragraph 1–19 may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability (AR 635–40) and excluding conditions appropriate for 54 AR 635–200 • 19 December 2003 separation processing under paragraph 5–11 or 5–13 that potentially interfere with assignment to or performance of duty. 3. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs), on 3 September 2014, 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. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The memorandum directed them to give liberal consideration 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, traumatic brain injury (TBI), sexual assault, or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 5. 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) AR20190004337 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190004337 9 ABCMR Record of Proceedings (cont) AR20190004337 6