IN THE CASE OF: BOARD DATE: 9 December 2021 DOCKET NUMBER: AR20210012189 APPLICANT REQUESTS: an upgrade of his under honorable conditions (general) discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Arizona Department of Veteran's Services Certificate of Completion * Legal Assistant/Paralegal Diploma * Legal Assistant/Paralegal Certificate * Suicide First Aid Certificate * Peer Support Specialist Training Certificate * Peer Support Specialist Train the Trainer Certificate * 2 x Letters of Recommendation * Certificate of Award Basic Training Course in Veterans' Benefits * Certificate of Completion on Access to Lethal Means * Certificate of Completion Suicide Prevention Online * Certificate of Attendance Military/Veteran Resource Navigation * Certificate of Completion Basic Training American Legion * Certificate of Completion American Legion Extension FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), 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 the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect, he has undiagnosed post-traumatic stress disorder (PTSD) due to being kidnapped and tortured in a child porn ring prior to his entry on active duty. This led him to act out and have issues with his superiors, not so much because of his leaders, but because of his issues. He was having survivor's guilt, drinking, and making poor decisions. Since he's had several years of therapy, and is now a crisis counselor, even starting his own Veterans' Service Office, he's turned his life around and uses his past to help others. He's provided documentation to show the Board he has turned his life around. 3. The applicant provides the following documents for the Board's consideration: a. Certificates of Completion/Training and diplomas, which show on: * 5 December 2016, Legal Assistant/Paralegal Diploma * 18 February 2017, Certificate of Completion The American Legion Extension Institute * 26 April 2017, Certificate of Award for Basic Training Course in Veterans' Benefits * 24 March 2017, Certificate of Completion Peer Support Specialist Training * 16 May 2017, Certificate of Attendance Military/Veteran Resource Navigation Training * 14 June to 15 June 2017, ASIST workshop in Suicide First Aid Certificate * 16 June 2017, Certificate of Completion Counseling on Access to Lethal Means * 21 June 2017, Certificate of Completion Suicide Prevention Online Training * 5 July 2017, Legal Assistant Paralegal Diploma * 11 May 2018, Certificate of Completion Peer Support Specialist Train the Trainer * 9 May to 10 May 2019, Certificate of Completion Veterans' Benefit Training * 16 January 2021, Certificate of Completion, Basic Training course of The American Legion Education Institute b. Two letters of recommendation, which state: (1) From the Vice President of Operations, it is his pleasure to provide the letter of recommendation or the applicant. The applicant is charismatic and well-spoken. He has proven himself to be a strong cultural fit with the company. He was always ready to lend a helping hand to his teammates along with meeting all professional expectations. The author was confident the applicant would surpass expectations in any role. He was driving, self-confident, proactively helpful, and the author knew he would continue to find success in a leadership position. (2) A clinical coordinator who known the applicant since March 2017. the applicant was representing the American Legion service officers. He embraced the material so fully and enthusiastically the author asked him if he would be interested in helping out an instructor. He assisted with facilitation of many of their peer support certification training workshops without compensation and as a gift to the veterans' and peer support community. He brought his unique perspective of lived experience to the endeavor. He devoted a significant portion of his time to his duties as an American Legion Service Officer. He is put in the role of an unofficial de-facto crisis worker for veterans in need. The author continues to enjoy working with the applicant and learning from him. He is someone you can count on to have your back. 4. On 21 May 1983, the applicant enlisted in the U.S. Army Reserve (USAR) delayed entry program (DEP), at the age of 17 years for a period of 6 years. On 7 September 1983, he was discharged from the USAR DEP and entered active duty for a period of 3 years. His DA Form 2-1 (Personnel Qualification Record) shows he entered one station unit training for the military occupational specialty (MOS) of 13B (Cannon Crewman) on 16 September 1983. On 9 December 1983, orders were published awarding the applicant the MOS of 13B effective 29 November 1983. He arrived at his first duty station in Germany on 11 January 1984. 5. On 6 March 1984, the applicant was informed he had a dishonored check in the amount of $100.00. On 30 March 1984, the applicant was informed he had three dishonored checks in the amounts of $200.00, $300.00, and $200.00. 6. On 8 March 1984, a Military Police Report shows there was a report of medical attention for alcohol overdose. The applicant had been found lying on the floor of an enlisted club apparently unconscious. 7. The applicant received General Counseling Forms on: a. 13 August 1984, monthly counseling on his appearance, attitude, and performance. His appearance needed work. Following instructions seemed to be a stretch for the applicant. His performance was below average. The applicant concurred with the counseling and signed the form. b. Sometime after 13 August 1984, for failing to follow the instructions of a noncommissioned officer and missing formation. The second page of the counseling was not available for the Board's consideration. c. 4 September 1984, for failing to follow instructions and his performance, which was below the Army standards. The applicant concurred with the counseling and signed the form. d. 14 September 1984, performance counseling for his sub performance and general military attitude both on and off duty, which were below the standards of his unit. The applicant concurred with the counseling and signed the form. e. 4 December 1984, for failing to obey a lawful order of an NCO. The applicant concurred with the counseling and signed the form. f. 4 December 1984, for being disrespectful to an NCO, his appearance was below the military standards, and his performance was below standards. The applicant concurred with the counseling and signed the form. g. 13 December 1984, for failing to be at his appointed place of duty. The applicant concurred with the counseling and signed the form. h. 14 December 1984, for disobeying a lawful order from an NCO. The applicant concurred with the counseling and signed the form. 8. The applicant accepted nonjudicial punishment (NJP) on: a. 14 September 1984, for failing to obey a lawful order from an NCO. His punishment included reduction to the grade of Private/E-1 (PVT), forfeiture of $125.00 and restriction and extra duty for 14 days. He did not appeal his punishment. b. 28 January 1985, for wrongfully having sexual relations with a woman not his wife. His punishment included forfeiture of $144.00, and restriction for 14 days. He did not appeal his punishment. 9. On 4 December 1984, a Bar to Reenlistment was initiated on the applicant. He had received NJP on 8 March 1984 for public drunkenness and on 14 September 1984 for failing to obey a lawful order. He had been notified of dishonored checks on two occasions. His commander stated, despite counseling by the chain of command, the applicant failed to make significant improvement in his appearance, attitude, and duty performance. 10. On 18 December 1984, the applicant underwent a Report of Mental Status Evaluation, which shows the applicant had the mental capacity to understand and participate in the proceedings. 11. On 20 December 1984, the recommendation for barring the reenlistment of the application had been reviewed and was approved. 12. On 7 January 1985, the applicant's commander informed him of his intent to initiate separation action against the applicant, under paragraph 14-12b (A Pattern of Misconduct – Conduct Prejudicial to Good Order and Discipline), Army Regulation 635- 200 (Personnel Separations – Enlisted Personnel). The commander advised the applicant of his right to consult with consulting counsel, submit written statements in his own behalf, and to waive the foregoing rights; the commander stated if his recommendation were approved the applicant could receive an honorable or under honorable conditions (general) discharge certificate. The commander listed the following as his reasons for recommending the applicant's separation; on the below-listed dates, the applicant: * 15 to 17 February 1984, insufficient funds in the amount of $900 * 8 March 1984, drunk in a public place * 13 August 1984, failure to report and failure to follow instructions * 30 August 1984, poor performance * 4 September 1984, failure to follow instruction and performance below standards * 22 September 1984, breaking restriction * 29 November 1984, disobeying a lawful order * 7 December 1984, failure to report * 11 December 1984, disobeying a lawful order 13. On 7 January 1985, after consulting with counsel the applicant acknowledged counsel had explained the basis for the contemplated separation action, and informed him of his rights under the separation process. The applicant affirmed he understood his rights and elected not to submit a statement on his own behalf. 14. The applicant's chain of command recommended approval of the recommendation for discharge with an under honorable conditions (general) discharge. 15. The separation authority's approval memorandum is not available for the Board's review; however, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was separated on 8 February 1985 under the provisions of Army Regulation 635-200, paragraph 14-12b and received an under honorable conditions (general) discharge. He completed 1 year, 5 months, and 2 days of his 4-year enlistment contract. 16. During the applicant's era of service, commanders could initiate separation action, under paragraph 14-12b, Army Regulation 635-200, when Soldiers demonstrated discreditable conduct and conduct that was prejudicial to good order and discipline; such conduct included behaviors that violated accepted standards found in the UCMJ, Army Regulations, civil law, and the time-honored customs and traditions within the Army. Before initiating separation action under this provision, commanders were required to ensure the Soldier had received adequate counseling and rehabilitation. In cases where the leadership did not propose the Soldier receive an under other than honorable conditions character of service, the commander used the notification procedure to advise the Soldier of the contemplated separation. 17. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part of 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. 18. The Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 19. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) psychologist was asked by the ABCMR to review this request. Documentation reviewed includes the application and supporting documentation and his service records. The Department of Veterans Affairs electronic medical record, Joint Legacy Viewer (JLV), was also reviewed. a. JLV indicated an 80% service connected disability rating with paralysis of musculospinal nerve (50%), limited flexion of thigh (30%), paralysis of sciatic nerve (20%), intervertebral disc syndrome (20%), paralysis of sciatic nerve (10%), and tinnitus (10%). b. A Psychiatry Initial Evaluation Note, dated 13 December 2010 indicated, “He attempted suicide once with cutting. He can cry very easily and get angry very easily…He has a hard time getting a job because he was in prison for 5 years. He is a sex offender…He cut himself last time in 12/04…He was kidnapped at age 16 by a child pornography ring. They were tortured. He was beaten because he refused to do some things to a 13 y/o girl. She was also beaten and died in his arms…He had flashbacks when he was in jail locked up.” The treating physician diagnosed him with PTSD and depression. The Problem List included PTSD, unspecified (4 March 2021); major depressive disorder, recurrent, severe without psychotic features (4 December 2017); obstructive sleep apnea (adult)(pediatric) (17 August 2017); insomnia, unspecified (4 August 2016); and PTSD, chronic (27 April 2016). c. Based on the available information, it is the opinion of the ARBA psychologist there is insufficient evidence to support the presence of PTSD or any other behavioral health conditions which led to his discharge. No medical records supporting the presence of significant psychological symptoms or diagnoses during his time in service were provided for review. There is a lack of documented evidence that any preexisting PTSD from traumatic events in his adolescent years worsened during his time in service. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's PTSD claim and the review and conclusions of the ARBA psychologist. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding there being insufficient evidence to support the presence of PTSD or any other behavioral health conditions that may have contributed to his misconduct. Based on a preponderance of evidence, the Board determined 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 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 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. 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. Separation authorities could furnish an honorable discharge when the Soldier's subsequent honest and faithful service over a greater period outweighed the disqualifying entries found in his/her record. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Paragraph 14-12b stated members were subject to separation under this provision when they showed a pattern of misconduct involving acts of discreditable involvement with civil or military authorities, and/or displayed conduct that was prejudicial to good order and discipline. 3. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) 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. 4. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to Discharge Review Boards (DRBs) and Board for Correction of Military/Naval Records (BCM/NRs) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including Post Traumatic Stress Disorder (PTSD); Traumatic Brain Injury (TBI); sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to 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. 5. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210012189 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1