DEPARTMENT OF THE ARMY ARMY REVIEW BOARDS AGENCY 251 18TH STREET SOUTH, SUITE 385 ARLINGTON, VA 22202-3531 SAMR-RB 21 December 2020 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for , AR20190006942 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings in which a majority of Board members recommended denial of the applicant’s request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by amending the DD Form 214 for the period of service ending 29 April 2016 to reflect in item 24 (Character of Service) – “Honorable” vice “Under honorable conditions (General).” Additionally, I direct that the applicant’s records and suspended MEB be referred to the Office of the Surgeon General to resume the applicant’s disability evaluation system processing by forwarding the MEB determination for consideration by a PEB. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 1 May 2021. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: X Encl CF: ( ) OMPF Printed on Recycled Paper ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 3 December 2019 DOCKET NUMBER: AR20190006942 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 8 May 2019, with personal affidavit * Basic Combat Training diploma, dated 22 July 2011 * two training certificates * three pages of documents from his separation processing file, dated 23 November 2015 and 10 March 2016 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. He had a calling to join the military and joined the medical field as a combat medic. He was stationed at Fort Drum, New York, which was a very toxic environment. He deployed in January 2012; he was deployed for nine months before getting injured. The deployment was traumatic. He was still a good Soldier after the deployment. b. One Sunday after having a celebration in the barracks, he did not get up as soon as he was supposed to. It was said that he smelled like alcohol and he was given a blood alcohol concentration (BAC) test, which resulted in a .04 BAC. The legal limit in the State of New York is .08. c. He was a great Soldier until his leaders made a bad call that got him hurt on deployment. He was put on a grenade launcher as a medical asset. They received contact in the form of a rocket propelled grenade and he assumed the new role. While 1 not hitting him or the vehicle directly, the blast temporarily stunned him. He attempted to fire back only to realize that they were transporting defective weapons for the mission. As the only medic, he could not assess himself. d. He was harassed and hazed to prevent him from telling anyone what happened. He was not allowed to leave the unit even when he reenlisted to do so. He was told he had too many mental health appointments and was told to cancel them. He was given an Article 15 for being drunk even though he wasn’t legally drunk. He was told it was the commander’s discretion. e. His providers recommended him for a medical evaluation board (MEB) for a year and a half but his unit refused to file the paperwork or let him leave the command. He was discharged in the middle of his MEB without referral to a physical evaluation board (PEB). He was rated by the Department of Veterans Affairs (VA) at 100 percent (less than a week after his expiration term of service (ETS) date). f. He works part time and has a daughter that he takes care of. He still has bad anxiety and has headaches from the traumatic brain injury. He can’t focus and jumps at loud noises. He has nightmares and has to take medication to sleep. 3. The applicant enlisted in the Regular Army on 9 May 2011. He served in Afghanistan from 15 January through 12 September 2013. He reenlisted in the Regular Army on 10 May 2014. 4. The applicant was formally counseled on over 30 separate occasions between 5 November 2014 and 10 August 2015, for reasons including but not limited to: his duty performance, failure to be at his appointed place of duty, displaying disrespect towards a commissioned officer and a noncommissioned officer, failure to obey a lawful order, and failure to report. 5. The applicant accepted non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated offenses: * on 18 December 2014, for failure to go at the time prescribed to his appointed place of duty and for being drunk while on duty, on or about 20 October 2014 * on 3 August 2015, for failure to go at the time prescribed to his appointed place of duty, on or about 24 June 2015 6. A DA Form 3822 (Report of Mental Status Evaluation), dated 20 August 2015, shows the applicant was able to participate in administrative proceedings. He was diagnosed with post-traumatic stress disorder (PTSD) and referred to an MEB. 7. The applicant's immediate commander notified the applicant on 17 November 2015 of his intent to initiate separation actions against him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b, for a pattern of misconduct. 8. The applicant consulted with counsel on 24 November 2015 and was advised of the basis for the contemplated action to separate him and of the rights available to him. He acknowledged his understanding and elected to submit a statement in his own behalf. In the applicant’s rebuttal statement, he requested withdrawal of his involuntary separation based on maltreatment and oppression. He further requested an honorable characterization of service. 9. The applicant's commander formally recommended his separation from service under the provisions of Army Regulation 635-200, Chapter 14, by reason of a pattern of misconduct. 10. The separation authority, on 25 April 2016, determined the applicant’s medical condition was not the direct or substantial contributing cause of the conduct that led to his recommendation for discharge. He further directed the suspended separation be vacated and the applicant be separated with a general, under honorable conditions characterization of service. 11. The applicant was discharged on 29 April 2016. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of pattern of misconduct. His service was characterized as under honorable conditions (general). 12. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. On 31 January 2018, the ADRB determined the applicant’s narrative reason for separation was inequitable based on his length of service and the in-service and post service diagnosis of behavioral health issues and PTSD. 13. The applicant was issued a new DD Form 214, which confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12a, by reason of misconduct (minor infractions) and his separation code to "JKN." His service characterization remained unchanged. 14. The Board should consider the applicant's statement and overall record in accordance with the published equity, injustice, or clemency determination guidance. 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 as noted in the references below. 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. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was no post-service evidence to justify a clemency determination. The Board found the character of service equitable under the circumstances. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 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. X 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 ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Chapter 14 of this regulation establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally considered appropriate. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 3. As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis and treatment of PTSD, the Department of Defense (DoD) acknowledges that some Soldiers who were administratively discharged UOTHC may have had an undiagnosed condition of PTSD at the time of their discharge. It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldier's misconduct which served as a catalyst for their discharge. Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period of time. 4. BCM/NRs are not courts, nor are they investigative agencies. Therefore, the determinations will be based upon a thorough review of the available military records and the evidence provided by each applicant on a case-by-case basis. When determining if PTSD was the causative factor for an applicant's misconduct and whether an upgrade is warranted, the following factors must be carefully considered: • Is it reasonable to determine that PTSD or PTSD-related conditions existed at the time of discharge? • Does the applicant's record contain documentation of the occurrence of a traumatic event during the period of service? • Does the applicant's military record contain documentation of a diagnosis of PTSD or PTSD-related symptoms? • Did the applicant provide documentation of a diagnosis of PTSD or PTSD-related symptoms rendered by a competent mental health professional representing a civilian healthcare provider? • Was the applicant's condition determined to have existed prior to military service? • Was the applicant's condition determined to be incurred during or aggravated by military service? • Do mitigating factors exist in the applicant's case? • Did the applicant have a history of misconduct prior to the occurrence of the traumatic event? • Was the applicant's misconduct premeditated? • How serious was the misconduct? 5. Although the DoD acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge, it is presumed that they were properly discharged based upon the evidence that was available at the time. a. Conditions documented in the record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge; those conditions will be considered potential mitigating factors in the misconduct that caused the UOTHC characterization of service. b. Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of UOTHC. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. c. Correction Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. 6. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS//