IN THE CASE OF: BOARD DATE: 6 October 2021 DOCKET NUMBER: AR20210010688 APPLICANT REQUESTS: a. His under honorable conditions (General) discharge be upgraded to an honorable discharge; b. Removal of a wrongful DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), rendered on an unspecified date, from his official military personnel file (OMPF) c. Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was separated in the rank/grade of sergeant (SGT)/E5 and he was awarded the Combat Infantryman Badge (CIB). 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 7 December 2020 * Department of Veterans Affairs (VA) Compensation letter * VA Rating Decision 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, in effect, he is requesting an upgrade because he was the victim of reprisal. His unit was under investigation by the U.S. Army Criminal Investigation Command (CID) for Very Important Person (VIP) casualties and death sustained during an attack in Iraq during November 2003. He suffers from post- traumatic stress disorder (PTSD) and traumatic brain injury (TBI). He contends he was discredited as a witness to the unit’s actions and as a result, received a wrongful Article 15, lost his rank, lost his CIB, and was subsequently discharged under honorable conditions. The highest rank/grade he held was SGT/E5 with a date of rank (DOR) of 1 September 2001. His unit was disbanded after its deployment. 3. The applicant enlisted in the Regular Army on 12 November 1998. He completed his initial entry training and was initially awarded primary military occupational specialty (PMOS) 11B (Infantryman) in 1989, then subsequently awarded PMOS 12B (Combat Engineer) in 1990. He was assigned to a unit at Fort Campbell, Kentucky from March 1999 until he was reassigned on a permanent change of station move to a unit at Fort Bragg, North Carolina in May 2001. 4. His Enlisted Record Brief (ERB) shows he was promoted to the rank/grade of SGT/E5 effective 1 September 2001. 5. The applicant accepted Field Grade nonjudicial punishment (NJP) on 19 December 2002, under the provisions of Article 15 of the UCMJ, for two specifications of violating Article 90, UCMJ by willfully disobeying a lawful order from a superior commissioned officer to have no contact with deployed Soldiers’ wives without having someone else present, between on or about 21 June and 1 November 2002; and one specification of violating Article 91, UCMJ by willfully disobeying a lawful order from a superior noncommissioned officer (NCO) to have no contact with deployed Soldiers’ wives without having someone else present, between on or about 21 June and 1 November 2002. His punishment included reduction from the rank/grade of SGT/E5 to specialist (SPC)/E4; forfeiture of $874.00 pay per month for two months; extra duty for 45 days and restriction for 45 days, suspended, to be automatically remitted if not vacated before 17 June 2003. The imposing commander directed filing of this document in the restricted portion of applicant’s OMPF. The applicant chose not to appeal this NJP. 6. A DA Form 4856 (Developmental Counseling Form), rendered on 13 November 2003, shows the applicant was counseled by his platoon sergeant for: violating Article 134, UCMJ by willfully discharging a firearm under such circumstances as to endanger human life; rendering a false official statement; lying to two superior NCOs; and illegally recording a conversation with a superior senior NCO. As a result, the applicant was advised that continued conduct of this nature could result in actions to separate him from the Army under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapters 13 or 14. The applicant was further advised that should he be involuntarily separated, he could receive an honorable discharge, a general discharge under honorable conditions, or an under other than honorable conditions (UOTHC) discharge. He described the potential impact of each type of discharge on future benefits and civilian employment opportunities. The applicant initialed this form indicating his agreement with the counseling, but also indicated he stood by his statement of the events as truth to his knowledge. 7. The applicant accepted Field Grade NJP on 22 November 2003, under the provisions of Article 15 of the UCMJ, for one specification of violating Article 107, UCMJ by willfully, with intent to deceive, making a false official statement to a superior NCO on or about 11 November 2003; and one specification of violating Article 134, UCMJ by wrongfully and willfully discharging a firearm without positively identifying the target vehicle, under circumstances as to endanger human life. His punishment included reduction from the rank/grade of SPC/E4 to private (PV1)/E1; forfeiture of $625.00 pay per month for two months; extra duty for 45 days and restriction for 45 days. The applicant chose to appeal this NJP to the brigade commander. The brigade commander considered the applicant’s appeal and determined the proceedings were conducted in accordance with law and regulation and the punishments imposed were not unjust nor disproportionate to the offenses committed. After consideration of all matters presented in the appeal, it was denied by the brigade commander on 29 November 2003. The filing decision for this NJP is struck through and no determination is indicated elsewhere on the form. 8. The applicant underwent a pre-separation medical examination on 4 December 2003. The examining physician noted the applicant suffered from chronic insomnia and periodic subjective memory loss for which he had never sought treatment. The physician recommended the applicant undergo a sleep study and further evaluation as a civilian. The applicant was determined to be qualified for discharge. 9. A DA Form 3822-R (Report of Mental Status Evaluation) shows the applicant underwent a mental status evaluation on 4 December 2003. The evaluation showed: * he could understand and participate in administrative proceedings * he could appreciate the difference between right and wrong * he did meet the retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3 * he was psychiatrically cleared for any administrative action and or training deemed appropriate by command 10. The applicant's immediate commander notified the applicant on 19 December 2003, of his intent to initiate actions to separate him under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of a pattern of misconduct. He specifically cited the aforementioned Field Grade NJPs for his recommendation. The applicant acknowledged receipt of the commander's notification memorandum the same day. 11. The applicant consulted with counsel on 19 December 2003 and was advised of the basis for the contemplated actions to separate him under the provisions of Army Regulation 635-200, Chapter 14, and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights. He acknowledged he may encounter substantial prejudice in civilian life if he received a general discharge. He requested counsel and consideration of his case by an administrative separation board. However, he conditionally waived his right to this board if he received a General discharge, under honorable conditions. He indicated he would submit statements in his own behalf within seven days; however, there are none included in his discharge packet. 12. The applicant's immediate commander formally recommended his separation prior to the expiration of his term of service on 19 December 2003, under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, by reason of his pattern of misconduct. He again cited the aforementioned Field Grade NJPs for his recommendation. 13. The applicant’s battalion and regimental commanders recommended approval of his separation with the issuance of a General, under honorable conditions discharge. 14. Consistent with the commander’s recommendations, the separation authority approved the applicant's discharge on 19 January 2004, under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of a pattern of misconduct, and directed that his service be characterized as General, under honorable conditions. 15. The applicant was discharged on 1 March 2004. The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of Misconduct – Pattern of Misconduct. His service was characterized as under honorable conditions (General). a. Item 4a (Grade, Rate, or Rank)) shows his rank as PV1. b. Item 4b (Pay Grade) shows his pay grade as E1. c. Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized (All periods of service)) does not show award of the CIB. d. Item 18 (Remarks) of his DD Form 214 indicates he deployed in support of Operation Enduring Freedom and Operation Iraqi Freedom from 15 June 2002 to 15 December 2002 and from 8 August 2003 to 15 February 2004. 16. Neither his ERB nor his DA Form 2-1 (Personnel Qualification Record - Part II) show that he was awarded the CIB. A review of his available personnel service record failed to show any evidence and he did not provide any evidence that shows he ever performed the duties of an infantryman in active ground combat while assigned or attached to an infantry unit of brigade, regimental, or smaller size. Additionally, there is no evidence showing that he was ever awarded the Combat Infantryman Badge. 17. The evidence of record confirms the applicant violated the UCMJ and subsequently accepted Field Grade NJP on 19 December 2002 and he elected not to appeal his punishment. The imposing commander suspended all other punishment and directed this Article 15 be filed in the restricted section of his AMHRR. The applicant’s appeal for his Field Grade NJP on 22 November 2003 was considered by the appropriate authority and subsequently denied. His NJP proceedings were conducted in accordance with law and regulation. There is no evidence of record and the applicant provides no evidence to show that either DA Form 2627 is untrue or unjust. 18. Although evidence shows the applicant once held the rank/grade of SGT/E5, it also clearly shows he was reduced to SPC/E4 as a result of NJP on 19 December 2002 and to PV1/E1 as a result of NJP on 22 November 2003. His record is void of evidence and he has failed to provide any evidence show these reductions were erroneous or that he was subsequently promoted to SGT/E5. 19. The applicant’s record is void of evidence and he has not provided evidence showing he was diagnosed with either PTSD, TBI during his period of active duty service. 20. The applicant provides a letter rendered by the VA Saint Petersburg Regional Office, Saint Petersburg, Florida on 19 December 2011, and a VA Rating Decision rendered on 15 December 2011, which show a decision was made on his claim for service-connected compensation received on 7 December 2010. In pertinent part, it shows the VA assigned him a temporary disability evaluation for his service-connected PTSD with insomnia (also claimed as anxiety), effective 29 November 2010, because of hospitalization over 21 days. His overall or combined rating was 80 percent effective; however, he was being paid at the 100 percent rate because he was rated as unemployable effective 20 February 2009. The decisions were based upon post- service claims provided by the applicant and medical treatment received by the applicant commencing in 2009. 21. The Board should consider the applicant's statement in accordance with the published equity, injustice, or 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 existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. 22. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting an upgrade of his 1 March 2004 discharge characterized as under honorable conditions (general) and, in essence, a referral to the Disability Evaluation System (DES). He states: “Suffered TBI, PTSD and wrongful Article 15, loss of CIB award during IRAQ deployment 2003-2004 and subsequent discharge 3/1/2004. Requesting upgrade of discharge, award of CIB and removal of Article 15.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 for the period under consideration shows he entered the regular Army on 12 November 1998 and was discharged under honorable conditions (general) on 1 March 2004 under the separation authority provided by paragraph 14-12b(2) of AR 635-200, Active Duty Enlisted Administrative Separations (13 December 2013): Pattern of Misconduct. It shows service in support of Operations Enduring Freedom and Iraqi Freedom from 15 June 2002 thru 15 December 2002 and from 8 August 2003 thru 15 February 2003. c. No medical documentation was submitted with the application and there are no encounters in AHLTA. d. The applicant received a field grade Article 15 on 19 December 2002 for two failures to obey the lawful commands of LTC S. and one failure to obey the lawful command of a superior NCO, CSM B.: “To have no contact with deployed soldiers’ wives without having someone else present, or words to that effect, did at or near Fort Bragg, NC, between on or about 21 June 02 and 1 November 2002.” The commands had been given in June and July of 2002. e. He received a second Article 15 on 22 November 2003. Actions included making a false official statement, making an illegal tape recording of his 1SG, and “wrongfully and willfully discharge a firearm, to wit: M-4 carbine, without positively identifying the target vehicle, under circumstances such as to endanger human life.” f. The applicant underwent a pre-separation physical in December 2003 after which the applicant was diagnosed with: 1. dental work – need regular follow-up as civilian 2. bilateral burns (feet) – elective surgery as desired as a civilian 3. insomnia/memory loss (subjective) recommend sleep study, further evaluation as a civilian g. His mental status evaluation was also completed in December 2003. The provider noted the applicant had occupational problems but no significant mental health disorder. He opined the applicant had the mental capacity to understand and participate in proceedings, was mentally responsible, and the ability to distinguish right from wrong, and found “no evidence of an emotional or mental disorder of psychiatric significance to warrant disposition through medical channels.” h. On 19 December 2003, his company commander initiated separation action under 14-12b(2) of AR 635-200 for his two Article 15s. i. On 19 January 2004, the commanding general of the 82nd Airborne Division directed his discharge with an under honorable conditions (general) characterization of service. j. Review of his medical records in JLV show he has been diagnosed with PTSD. k. There is no evidence the applicant had a mental health or other medical condition which would have then contributed to or would now mitigate his multiple UCMJ violations; or that would have failed the medical retention standards of chapter 3, AR 40-501, Standards of Medical Fitness, and been a cause for referral to the DES prior to his discharge. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. l. Review of his medical records in JLV show he has been diagnosed with PTSD. m. Based on the information currently available and in accordance with the Liberal Consideration guidance, it is the opinion of the Agency medical advisor that his PTSD does not mitigate the multiple UCMJ violations which resulted in his administrative discharge. Therefore, it is recommended that his discharge not be re-characterized. BOARD DISCUSSION: After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief was not warranted. The Board carefully considered applicant’s contentions, military record, medical review and regulatory guidance. The Board considered the circumstances of his discharge and the totality of the misconduct. The Board concurred with the Agency Medial Advisor opinion that, although the applicant has a diagnosis of PTSD, further documentation is void of evidence of a health or medical condition during his period of service or post service sufficient to be considered a mitigating factor for the misconduct that led to his reduction in rank and his under honorable conditions discharge. The Board further determined the evidence presented insufficient to show the applicant met regulatory guidance for the award of the Combat Infantry Badge. Based on the preponderance of evidence available for review, the Board determined the evidence presented insufficient to warrant a recommendation for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF :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. 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 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts- Martial. It provides that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ. Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate. Prompt action is essential for NJP to have the proper corrective effect. NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier’s record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial. a. Paragraph 3-6 addresses the filing of an NJP and provides that a commander’s decision whether to file a record of NJP in the performance section of a Soldier’s AMHRR is as important as the decision relating to the imposition of the NJP itself. In making a filing determination, the imposing commander must weigh carefully the interests of the Soldier’s career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility. In this regard, the imposing commander should consider the Soldier’s age, grade, total service (with particular attention to the Soldier’s recent performance and past misconduct), and whether the Soldier has more than one record of NJP directed for filing in the restricted section. However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline. In such cases, the record should be filed in the performance section. b. Paragraph 3-37b(2) states that for Soldiers in the ranks of SGT and above, the original will be sent to the appropriate custodian for filing in the AMHRR. The decision to file the original DA Form 2627 in the performance section or restricted section of the AMHRR will be made by the imposing commander at the time punishment is imposed. The filing decision of the imposing commander is subject to review by superior authority. c. Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the AMHRR. It states to support a request for transfer, the person must submit substantive evidence that the intended purpose of the Article 15 has been served and that transfer of the record is in the best interest of the Army. 3. Army Regulation 600-8-22 (Military Awards) provides Department of the Army policy, criteria, and administrative instructions concerning individual military decorations, service medals and ribbons, and similar devices awarded in recognition of accomplishments. It states there are basically three requirements for award of the CIB. The Soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat. 4. Army Regulation 600-8-104 (AMHRR Management) provides policies, operating tasks, and steps governing the AMHRR. Folders and documents previously authorized for filing in any part of the AMHRR will remain in the AMHRR. The AMHRR is an administrative record as well as the official permanent record of military Service belonging to a Soldier. The AMHRR is the historical and authoritative source for authentication of veteran or Service-related benefits, entitlements, and services. 5. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. Chapter 2 contained item-by-item instructions for preparation of the DD Form 214 and specified to in item 13, list awards and decorations for all periods of service in the priority sequence specified in Army Regulation 600-8-22. Each entry will be verified by the Soldier's records. Do not use abbreviations. 6. 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. 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. c. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline). 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 UOTHC discharge was normally appropriate for a Soldier discharged under this chapter; however, the separation authority could direct a general discharge if merited by the Soldier’s overall record. 7. 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. 8. 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. 9. 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, 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 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. 10. 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) AR20210010688 1 ARMY BOARD FOR THE CORRECTIONS OF MILITARY RECORDS RECORD OF PROCEEDINGS 1