IN THE CASE OF:  BOARD DATE:  20 April 2020 DOCKET NUMBER:  AR20190015108 


APPLICANT REQUESTS: 

.Upgrade of his general discharge under honorable conditions to honorable

.Correct his DD Form 214 (Certificate of Release or Discharge from Active Duty)to show he deployed during Operation Desert Shield/Desert Storm

.Permission to personally appear before the Board



APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record)

.DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG))

.Two Standard Forms (SF) 600 (Chronological Record of Medical Care)

.DA Form 3822 (Report of Mental Status Evaluation)

.Photocopies of four envelopes (actual envelopes with contents not available forreview)

.Two Department of Veterans Affairs (VA) letters



1.The applicant did not file within the 3-year time frame provided in Title 10 (ArmedForces), United States Code (USC), section 1552 (b) (Correction of Military Records:Claims Incident Thereto).  However, the Army Board for Correction of Military Records(ABCMR) conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant states he was attached to an infantry battalion within the 24th InfantryDivision, and, in August 1990, he deployed with this unit to Saudi Arabia.  His servicerecords do not reflect this deployment, and, as a result, he has been unable to receivecertain benefits available only to Gulf War Veterans.  Moreover, the VA has awardedhim a 70 percent disability rating for service-connected post-traumatic stress disorder(PTSD); he asserts his service records should show that, despite clear indicators, theArmy completely ignored his PTSD.  He contends, in effect, his PTSD significantlycontributed to the misconduct that led to his discharge, and, if the Army had only givenhim the proper treatment, he would have completed his service honorably.  He believesthe evidence he has provided should be sufficient to qualify him for full and completeVA benefits; he offers additional details in a self-authored statement:
a.The applicant first discovered his Gulf War deployment was missing from hisDD Form 214 when a Disabled American Veterans (DAV) representative helped him file for VA disability benefits.  As noted above, without the requested addition of his deployment dates, the applicant will not be able to apply for and receive Gulf War specific treatments. 

b.He argues his PTSD is his main evidence in support of upgrading his character ofservice; he provides two mental evaluations (one rendered prior to and the other during his deployment).  The evaluation completed prior to deployment explicitly describes potential, but undiagnosed PTSD; the second evaluation, conducted at an Air Force hospital, may not contain details from the Air Force doctors, but the reasons for the evaluation are there.  In addition, his records include multiple instances of erratic behavior that clearly substantiates his PTSD symptoms.   

c.He gave the VA 385 pages of letters he wrote to his wife while deployed; hecontends these letters describe the kind of treatment he received from his unit, and how that treatment precipitated his PTSD (he elected not include these letters with his ABCMR petition because he felt the VA's recognition of his service-connected PTSD sufficiently supported his claims).  He maintains he would have fulfilled his enlistment contract and been honorably discharged had the Army diagnosed him early enough and offered the proper medical treatment. 

3.The applicant provides documents from his official military personnel file and militarymedical records, along with photocopies of envelopes and two VA letters.

a.SF 600, with an entry dated 25 April 1990, states a physician's assistantrequested the applicant undergo a mental evaluation after he had displayed aggressive and borderline hostile behaviors in response to stressful situations.   

b.DA Form 3822 (Report of Mental Status Evaluation), dated 25 April 1990,indicates the evaluator found the applicant's behavior to be aggressive, but the applicant was otherwise fully oriented, unremarkable in mood, displayed a clear thought process, and had normal thought content.   

c.SF 600, with entry dated 4 November 1990, states the applicant was seen at abattalion aid station on 6 September 1990 for a mental evaluation, secondary to a failure to follow orders and exhibiting threatening behavior.  On 7 September 1990, the applicant was admitted into an Air Force hospital in Saudi Arabia, but was subsequently released on 11 September 1990 and placed on 14 days' limited duty; the applicant was cleared for administrative discharge and found to be responsible for his actions 

d.The two VA letters, both dated 17 June 2019, affirm VA awarded him a combined70 percent disability rating for service-connected medical conditions; however no details are included as to what those conditions are.  

4.The applicant's service records show:

a.On 3 August 1989, the applicant enlisted as a private (PV2)/E-2 into the RegularArmy for 4 years; he was 20 years old.  On completion of initial training, orders assigned him as a food service specialist to an infantry unit at Fort Stewart, GA; he arrived on 15 December 1989. 

b.Prior to 23 September 1990, the applicant's chain of command promoted him toprivate first class (PFC)/E-3, and, at some point thereafter, he deployed with his unit to Saudi Arabia in support of Operations Desert Shield/Desert Storm.  On 23 September 1990, the applicant's commander initiated bar to reenlistment action against the applicant. 

(1)The commander's bar to reenlistment action was based on four incidents:

.2 April 1990 – accepted summarized nonjudicial punishment (NJP) underArticle 15, Uniform Code of Military Justice (UCMJ) for being absent from hisappointed place of duty

.8 July 1990 – received extra training after being disrespectful toward StaffSergeant (SSG) S__

.21 August 1990 – accepted NJP after absenting himself from physical trainingformation

.(No date given) – was placed on the overweight program



(2)The commander said he had evaluated the applicant using the "wholeperson" concept and concluded the applicant did not measure up to the Army's standards.  The applicant had been trying everything to get discharged and was unwilling to do what was needed to become a satisfactory Soldier; the applicant's conduct warranted separation.  

(3)The applicant was given an opportunity to respond, but elected not to submita statement in his own behalf.  On 27 September 1990, the battalion commander approved the bar to reenlistment. 

c.On 3 October 1990, the applicant's noncommissioned officer (NCO) gave theapplicant a performance counseling for the month of September 1990; the NCO stated the applicant's duty performance had been below standard.  The applicant responded, "My actions and attitude stem from my inability to agree with my superiors and fellow Soldiers on the effectiveness of the military S.O.P (standing operating procedures).  










I cannot adjust to the military lifestyle.  I do not accept the leadership.  I feel separation from the Army is the best solution for all parties involved.  I feel I cannot continue to work as a Soldier." d. On 3 November 1990, the applicant's NCO provided the applicant two counseling statements: (1) The first pertained to the applicant's duty performance in October 1990.  The NCO noted a marked improvement in the applicant's behavior; the applicant had worked hard and responded quickly to orders.  The applicant concurred with his NCO's comments, stating he changed his attitude because he was anticipating a chapter 16 (Selected Changes in Service Obligations) discharge, and he hoped to stay out of trouble until separated.  (Under chapter 16, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) Soldiers could apply for immediate discharge when they perceived they would be unable to overcome a locally-imposed bar to reenlistment).   (2) The second counseling statement addressed the applicant's duty performance prior to the unit's deployment in support of Operation Desert Shield.  The NCO stated the applicant's past duty performance had been unacceptable, in that the applicant had accepted NJP for misconduct, failed an Army Physical Fitness Test, and was unable to meet Army weight standards.  In addition the applicant was always late and brought problems upon himself; he was not acting like a Soldier.  The applicant reiterated his earlier arguments and complained that his requests for separation had been denied.   e. On 3 November 1990, First Lieutenant (1LT) H__ counseled the applicant because the applicant had disobeyed orders from his chain of command and had threatened his superiors with bodily harm and/or death.  1LT H__ stated, during pre-deployment, during deployment, and then after arrival in Saudi Arabia, the applicant had disobeyed direct and legal orders on several occasions.  In addition, the applicant had threatened to murder his immediate supervisors and the unit's first sergeant.  As a result, 1LT H__ was recommending the applicant for separation.  The applicant responded by indicating he could no longer put up with his chain of command and had lost all respect for them; he went on to restate his earlier complaints. f. On 6 November 1990, the applicant's commander advised him of his intent to separate the applicant under chapter 13 (Separation for Unsatisfactory Performance), AR 635-200.  The commander's stated reason was the applicant's continued unsatisfactory duty performance; the commander affirmed it was likely the applicant would continue to be a disruptive influence and, were the applicant retained, he adversely affect the unit's morale, good order, and discipline. 

g.On 7 November 1990, after consulting with counsel, the applicant acknowledgedcounsel had informed him of the basis for the contemplated separation action.  In addition, the applicant affirmed he understood his rights and the effect of waiving those rights.  He elected not to submit a statement in his own behalf. 

h.In or around the end of December 1990/early January 1991, the applicantredeployed to Fort Stewart.  On 8 January 1991, the separation authority approved the commander's separation recommendation and directed the applicant's general discharge under honorable conditions; on 5 February 1991, the applicant was discharged accordingly.  His DD Form 214 shows he completed 1 year, 6 months, and 3 days of his 4-year enlistment contract.  Item 18 (Remarks) of his DD Form 214 does not list his deployment to Saudi Arabia.  He was awarded or authorized the Army Service Ribbon and two marksmanship qualification badges. 

i.On 23 November 1991, the applicant petitioned the Army Discharge ReviewBoard (ADRB) requesting an upgraded character of service.  On 24 August 1994, the ADRB denied his request, noting the applicant had not submitted either an issue of propriety or of equity, with regard to his discharge.  In addition, the ADRB found that all requirements of law and regulation had been met when the applicant's chain of command processed his separation, and the applicant's rights had been fully protected; as such, relief was not warranted.   

5.AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before theBoard; however, the request for a hearing may be authorized by a panel of the Board orby the Director of ABCMR on a case-by-case basis.

6.The applicant essentially argues his unit's actions towards him caused him to incurPTSD, and, as a result, the VA has since awarded him a 70 percent disability rating.

a.During the applicant's era of service, commanders were to initiate separationaction against Soldiers who showed they were unqualified for further military service due to unsatisfactory performance.  Before initiating separation action, commanders were required to ensure Soldiers received adequate counseling and rehabilitation. 

b.The ABCMR is not empowered to grant requests for upgraded characters ofservice solely to make an applicant eligible for Veterans' benefits; however, in reaching its determination, the Board can consider the applicant’s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. 
BOARD DISCUSSION: 

1.The applicant's request for a personal appearance hearing was carefully considered.In this case, the evidence of record was sufficient to render a fair and equitabledecision.  As a result, a personal appearance hearing is not necessary to serve theinterest of equity and justice in this case.

2.After reviewing the application and all supporting documents, the Board found thatrelief was not warranted.  The Board carefully considered the applicants request,supporting documents, evidence in the records, VA documents submitted by theapplicant, and published DoD guidance for liberal consideration of discharge upgraderequests.  The Board considered the applicant's statement, his record of service, thefrequency and nature of his misconduct, and the reason for his separation.  Evidence ofrecord shows VA awarded him a combined 70 percent disability rating for service-connected medical conditions; however no details are included as to the type of medicalconditions.  The Board found insufficient evidence of in-service mitigating factors toovercome the misconduct.  The applicant provided no evidence of PTSD, post-serviceachievements, or letters of reference in support of a clemency determination.  Based ona preponderance of evidence, the Board determined that the character of service theapplicant received upon separation was not in error or unjust.

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

:XX :XXX :XXX DENY APPLICATION 

BOARD DETERMINATION/RECOMMENDATION: 

Except for the correction addressed in Administrative Note(s) below, the Board found 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 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. 

ADMINISTRATIVE NOTE(S): 

1.AR 635-5 (Separation Documents), in effect at the time, prescribed policies for thecompletion of the DD Form 214.  It stated:

.Item 12f (Foreign Service) was to show all service performed outside thecontinental United States

.Item 13 (Decorations, Medals, Badges, Citations, and Campaign RibbonsAwarded or Authorized) was to list all decorations, service medals, campaigncredits, and badges awarded or authorized

.Although not required at the time, later versions stipulated item 18 would reflectall deployments performed during the period of the report; the entry was to state:"SERVICE IN (name of country deployed) FROM (inclusive dates for example,YYYYMMDD-YYYYMMDD)"



2.While the applicant's service records indicate he deployed to Saudi Arabia with hisFort Stewart unit, there are no documents that verify the precise dates.

a.The Defense Manpower Data Center (DMDC) compiled an Operations DesertShield/Desert Storm Database that has since served as a primary source for verifying whether a Soldier deployed to Southwest Asia Theater of Operations during the Gulf War and the dates he/she was there.  

b.In the applicant's case, the database shows he was deployed to Southwest Asiafrom 1 October until 31 December 1990 (3 months).  Based on the foregoing, the applicant's DD Form 214 can be amended to show a deployment to Saudi Arabia from 1 October through 31 December 1990. 

3.AR 600-8-22 (Military Awards) prescribes policies and criteria for military awards.  Itstates:

a.The Southwest Asia Service Medal is awarded to Soldiers serving in SouthwestAsia between 2 August 1990 and 30 November 1995.  A bronze service star is authorized for wear with this medal for participation in each credited campaign.  Approved designated campaigns include:  Defense of Saudi Arabia (2 August 1990 to 16 January 1991). 

b.The Kuwait Liberation Medal – Government of Kuwait is awarded to Soldiers whoparticipated in the Persian Gulf War between 2 August 1990 and 31 August 1993. 

4.As a result, amend his DD Form 214, ending 5 February 1991, as follows:

.Item 12f:  Delete current entry and replace with "00/03/00"

.Item 13:  Add the Southwest Asia Service Medal with one bronze service starand the Kuwait Liberation Medal – Government of Kuwait

.Item 18:  "SERVICE IN SAUDI ARABIA FROM 19901001-19901231."



REFERENCES: 

1.Title 10, USC, section 1552(b), provides that applications for correction of militaryrecords must be filed within 3 years after discovery of the alleged error or injustice.  Thisprovision of law also allows the ABCMR to excuse an applicant's failure to timely filewithin the 3-year statute of limitations if the ABCMR determines it would be in theinterest of justice to do so.

2.AR 635-200, in effect at the time, set forth the basic authority for the separation ofenlisted personnel.
 
 a.  Paragraph 3-7a stated an honorable discharge was separation with honor.  Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate.  Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense.  An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time.  It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. 
 
 b.  Chapter 13 (Separation for Unsatisfactory Performance).  Soldiers could be separated under this provision when the commander determined he/she was unqualified for further military service because of unsatisfactory performance (i.e. the Soldier would not develop sufficiently to participate satisfactorily in training or become a satisfactory Soldier; was likely to be a disruptive influence; and retaining the Soldier would have an adverse impact on military discipline, good order, and morale).  Before initiating separation action, commanders were required to ensure the Soldier received adequate counseling and rehabilitation.  The Soldier could receive either an honorable or under honorable conditions character of service. 
 
3.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  BCM/NRs may grant clemency regardless of the type of court-martial.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment.  Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 
 
4.  AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR on a case-by-case basis.  
 
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