IN THE CASE OF: BOARD DATE: 17 December 2021 DOCKET NUMBER: AR20210011399 APPLICANT REQUESTS: Reconsideration of the previous request to have his under honorable conditions (general) discharge 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 6 April 2021 * Department of Veterans Affairs (VA) Summary of Benefits Letter, dated 2 April 2021 * 161 Pages of VA Health Records, for care from 1 January 2000 through 6 April 2021, provided on 6 April 2021 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 AR20150008177 on 22 September 2016. 2. As a new argument, the applicant states he was diagnosed with post-traumatic stress disorder (PTSD) prior to the events that precipitated his discharge. Thus, he believes PTSD was a contributing factor to his general discharge and therefore, his discharge should be upgraded. 3. The applicant enlisted in the Regular Army on 19 July 1988. He served through one enlistment and attained the rank/grade of sergeant SGT/E-5. He served in Federal Republic of Germany from 20 November 1988 through 1 January 1991; in Saudi Arabia from 2 January 1991 through 19 May 1991; and the Federal Republic of Germany from 20 May 1991 through 15 September 1991. He reenlisted in the Regular Army on 6 December 1991. 4. The applicant’s service record contains a DA Form 3976 (Military Police (MP) Report), dated 13 December 1992, showing he was observed on 12 December 1992 concealing two Nintendo game cartridges in his pants without rendering due payment. He was detained and escorted to the Post Exchange (PX) security office where the merchandise was recovered. He was apprehended and transported to the MP investigation office where he was advised of his rights, which he waived, and rendered a written statement admitting to the offense. He was cited and released to his unit. 5. The Fort Gordon Staff Judge Advocate opined on 18 December 1992 that there was sufficient evidence to title the applicant with larceny of Non-Appropriated Funds (NAF) Property. 6. Court-martial charges were preferred against the applicant on 2 February 1993, for a violation of the Uniform Code of Military Justice (UCMJ). The relevant DD Form 458 (Charge Sheet) shows he was charged with one specification of stealing from the Main Exchange on or about 12 December 1992, a total value of about $115.90. His chain of command recommended trial by special court-martial empowered to adjudge a bad conduct discharge (BCD). 7. The applicant consulted with legal counsel on 12 February 1993 and was advised of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of an under other than honorable conditions discharge; and the procedures and rights that were available to him. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. b. He was advised he could submit any statements he desired in his own behalf. He elected to submit the following statement in his own behalf: I, SGT am pending separation from the U.S. Army. I am writing this letter to justify my request for an Honorable Discharge. I am currently attending the 29Y School reclassifying from my primary MOS 11M20. I have been on active duty for four years and six months. I quickly ascended to the rank of sergeant in less than four years of service. I have considered myself as a career Soldier and was thought of by others as a Soldiers' Soldier. I was a participant in Desert Shield and Desert Storm where I was awarded the Combat Infantryman Badge. I have been awarded the Expert Infantry Badge, one ARCOM, two AAM's, SWA Medal, Kuwait Liberation Medal, National Defense Service Ribbon, Good Conduct Medal, and Overseas Ribbon. I exceeded the standards at PLDC and was placed on the commandant's list. I was awarded the APFT Excellence Badge for a score of 295. Until my recent offense I was a contender for Distinguished Honor Graduate in the 29Y course. I do not deny my wrong doing nor do I condone it. I have compromised my NCO values and the standards to which all Soldiers are held. I feel that punishment is the correct action and that justice should be served. My arrest has weighed heavily upon my mind as I contemplate the loss of my career as a Soldier. My actions have already resulted in the loss of my integrity and has been a great embarrassment to me and my family. Although I can retrace the series of events that led up to my crime in hopes to justify my actions, I can still only blame myself for my own poor judgment. This offense is my first, on a record void of any Article 15. The years that I served in the Army and my plans for a rewarding career are now no more and for this I am truly sorry. As an Infantryman I am unskilled for the civilian job force and I face the ominous task of providing for my wife and daughter. Therefore, with the deepest respect I ask that you will look upon my total service to the United States Army including my participation in Desert Shield and Desert Storm. I am proud of my time in service. If my contribution to the Army holds any value, then I request that I may separate honorably. Signed by Applicant 8. The separation authority approved the applicant's discharge request on 22 February 1993, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed the issuance of a general discharge. 9. The applicant was discharged on 5 March 1993, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. The DD Form 214 he was issued confirms he was discharged in the pay grade E-5; he was credited with completing four years, seven months, and five days of active service; and his service was characterized as under honorable conditions (general). 10. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 11. The applicant applied to the ADRB for an upgrade of his discharge; however, the Board denied his petition for relief on 18 November 1996. 12. The applicant applied to the ABCMR for an upgrade of his general discharge on 27 April 2015. a. The Chief of Behavioral Health (BH) Division, Health Care Delivery, Office of The Surgeon General (OTSG), provided a medical advisory opinion on 5 August 2016, wherein he stated the following: (1) The applicant requested that the Board upgrade his general discharge to an honorable discharge due to PTSD, noting that there was a 2 year period following his deployment during which he impulsively shoplifted items. The OTSG was asked to determine if PTSD or any other BH condition contributed to the misconduct leading to his discharge. This opinion was based on the information provided by the Board and records available in the Department of Defense (DOD) electronic medical record (AHLTA). (2) The applicant told the VA that his memories of combat were repressed until his C&P examination in March 2014 where he was diagnosed with PTSD and observed to be "generally functioning satisfactorily." The VA granted a service-connection for PTSD with a disability rating of 30 percent. At his VA intake examination in June 2015, he was diagnosed with trauma-related stress disorder, depression, and anxiety. Later that month, he began participating in the VA Trauma Recovery Group. (3) There was no evidence that the applicant met the criteria for PTSD during his military service. Furthermore, the presence of potentially untreated PTSD did not explain or directly mitigate his actions as PTSD was not reasonably related to impulsive behavior in the absence of flashbacks or other disordered thought processes of which there was no indication in this case. b. The advisory opinion was provided to the applicant on 11 August 2016 for acknowledgement/rebuttal, and he did not respond. c. The Board denied the applicant's request on 22 September 2016. 13. The applicant provides the following for consideration: * VA Summary of Benefits letter, showing he was rated 30% service connected on 1 December 2020 * 161 pages of Health eVet Health Record, provided on 6 April 2021, showing during a VA Compensation and Pension (C&P) examination on 17 March 2014 he was diagnosed with PTSD rated at 30 percent. He was referred to a Primary Care Physician regarding anxiety/PTSD type issues and was receiving treatment. 14. 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. 15. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The Armed Forces Health Longitudinal Technology Application (AHLTA), Federal Electronic Health Record (FEHR) & Health Artifacts Image Solutions (HAIMS) were not in use at the time of his service. His hardcopy medical record was not available for review. A review of JLV indicates the applicant has a service connected disability rating of 30% 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. There is no documentation to suggest he did not meet retention standards at the time of his discharge. PTSD is not a mitigating factor for larceny. There is no nexus between PTSD and theft. BOARD DISCUSSION: The Board carefully considered the applicants request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was charged with commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of AR 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. The applicant provided insufficient evidence of post-service achievements in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant 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 :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 to amend the decision of the ABCMR set forth in Docket Number AR20150008177 on 22 September 2016. 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 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 10 provided that a member who committed an offense or offenses, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. A UOTHC discharge was normally considered appropriate. 2. 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. 3. 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. 4. 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. 5. 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) AR20210011399 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1