IN THE CASE OF: BOARD DATE: 9 March 2022 DOCKET NUMBER: AR20210010263 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. Additionally, he requests an appearance before the Board via video/telephone. 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 27 April 2021, with self-authored statement * Health Veteran Personal Information Report, dated 11 May 2021 * Department of Veterans Affairs (VA) Letter, dated 12 May 2021 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. Throughout his time in service he suffered from undiagnosed illnesses of post- traumatic stress disorder (PTSD) and traumatic brain injury (TBI). His injury occurred while in basic training and was the start of his illness. As a coping mechanism for the pain that he was feeling he began using drugs and alcohol. As a result, he developed a substance abuse disorder that went untreated despite testing positive on multiple drug screenings. b. After being discharged he was told he could not receive health care from the VA, and lost all rights to his benefits. In 2010, his whole life changed when a Veteran pointed him in the direction where he could find information that could help. Now he is a husband and father of seven children. He prides himself on being available to help other veterans that are in need. 3. The applicant enlisted in the Regular Army on 20 March 1996. 4. A DA Form 4856 (General Counseling Form), dated 25 November 1997, shows the applicant was counseled for the wrongful use and possession of marijuana, based on a positive test on 25 November 1997. 5. The applicant accepted non-judicial punishment on 6 April 1998, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongful use of marijuana between on or about 13 October and 13 November 1997. 6. A DA Form 3822-R (Report of Mental Status Evaluation), dated 8 May 1998, shows the applicant was psychiatrically cleared for any administrative action deemed appropriate by command. 7. A Standard Form 93 (Report of Medical History), dated 8 July 1998, shows the applicant noted that he was in good health and was not taking any medication. 8. The applicant's immediate commander notified the applicant on 23 July 1998 of his intent to initiate actions to separate the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, for misconduct – commission of a serious offense. 9. The applicant consulted with counsel on 23 July 1998 and was advised of the basis for the contemplated actions to separate him and of the rights available to him. He acknowledged his understanding and elected not to submit a statement in his own behalf. 10. The applicant's immediate commander formally recommended his separation from service under the provisions of Army Regulation 635-200, Chapter 14, by reason of misconduct. The separation authority approved the recommended discharge on 17 August 1998 and directed the issuance of a DD Form 257A (General Discharge Certificate). 11. The applicant was discharged on 31 August 1998. 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 14-12c, by reason of misconduct. His service was characterized as under honorable conditions (general). 12. The applicant provides a health report that lists his active health problems. Additionally, he provides a VA letter that shows his service-connected disabilities for TBI with PTSD, scar, tinnitus, migraines, scar (painful), and phantosmia. This letter indicates he has a combined disability rating of 90 percent (%). 13. The Board should consider the applicant's statement in accordance with the published equity, injustice, and clemency determination guidance. 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 mental health conditions, including PTSD. The Veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience may have existed during or might have been aggravated by military service, and that the condition or experience may excuse or mitigate the discharge. 14. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military records. The Armed Forces Health Longitudinal Technology Application (AHLTA), Federal Electronic Health Record (FEHR) & Health Artifacts Image Solutions (HAIMS) was not in use at the time of his service. His hard copy medical record was not available for review. A review of his service record indicates he was seen for a mental health evaluation on 8 May 1998 and completed a separation physical on 8 Jul 1998. is. A review of JLV indicates he has received treatment at the VA since October 2011. On 12 Mar 2018, he was evaluated in the TBI clinic. He reported that during basic training another soldier hit him on the head with a Kevlar helmet and he was taken to the hospital for staples. He reported being on light duty for a few weeks and has had headaches since that injury. The provider noted mild cognitive impairments and a positive response on Topamax for the headaches. On 2 Jul 2018, he was diagnosed with Mood Disorder due to a medical condition. On 21 Dec 2018, he was diagnosed with PTSD. Effective 15 Jun 2019, he received a service- connected disability rating of 70% for PTSD. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is documentation to support a behavioral health diagnosis at the time of his discharge. He met retention standards at the time of his discharge. Under liberal guidance, PTSD is a mitigating factor for misconduct that led to his discharge. a. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (a) Yes (2) Did the condition exist or experience occur during military service? (a) Yes (3) Does the condition or experience actually excuse or mitigate the discharge? (a) Yes (4) Does the condition or experience outweigh the discharge? (a) Yes BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. The Board determined the applicant is currently service connected with a 70% disability rating. Upon review of the applicant’s petition, available military records and the medical review, the Board agreed with the advisory official finding there is documentation to support a behavioral health diagnosis at the time of his discharge. The applicant met retention standards at the time of his discharge. Under liberal guidance, PTSD is a mitigating factor for misconduct that led to his discharge. Based on this, the Board granted relief with an honorable discharge upgrade. 2. 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 equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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 the evidence presented is 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 reissuing the applicant a DD Form 214 showing his characterization of service as honorable. 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): N/A 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. 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. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: 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. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions (UOTHC) was normally considered appropriate. However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record. 4. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR), on 3 September 2014 [Hagel Memorandum], 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. 5. The Acting Principle Deputy Under Secretary of Defense (Personnel and Readiness) provided clarifying guidance to Service DRBs and Service BCM/NRs on 24 February 2016 [Carson Memorandum]. The memorandum directed the BCM/NRs to waive the statute of limitations. Fairness and equity demand, in cases of such magnitude that a Veteran's petition receives full and fair review, even if brought outside of the time limit. Similarly, cases considered previously, either by DRBs or BCM/NRs, but without benefit of the application of the Supplemental Guidance, shall be, upon petition, granted de novo review utilizing the Supplemental Guidance. 6. The Under Secretary of Defense (Personnel and Readiness) provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017 [Kurta Memorandum]. 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, 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 sexual assault or sexual harassment was unreported, or 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. 7. The Under Secretary of Defense (Personnel and Readiness) issued guidance to Service DRBs and Service BCM/NRs on 25 July 2018 [Wilkie Memorandum], 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 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) AR20210010263 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1