IN THE CASE OF: BOARD DATE: 19 July 2022 DOCKET NUMBER: AR20210017600 APPLICANT REQUESTS: an upgrade of his discharge from an under other than honorable conditions discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 18 August 2021 * Self-authored letter * Orders Number 131-0712, 11 May 2005 * Veteran Affairs letter, 8 December 2020 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, 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. He served in Iraq during Operation Iraqi Freedom and Operation Enduring Freedom, for 11 months, as a communications specialist. He saw a lot of death, became numb to it and he started to have nightmares. The first killing he witnessed was in Iraq. [He saw] a young boy run from behind a building yielding a handgun. The Soldier next to him killed the young buy. [He saw the] hole in the child’s forehead, the blood exit from the back of the child’s head, and his lifeless body drop to the ground. b. He became a killing machine and his mind was no longer sane. He figured the only way to control the fear was to kill any threat on site without thinking. Finally, it became too much to handle, he informed his command, and he was told to suck it up. He turned to alcohol, he informed the Brigade and still no help was provided. He was never given any assistance with his emotional well-being. He tried marijuana and informed his Brigade of the [drug use]. [His unit] drug tested him and [he was subsequently] demoted. He did not receive help, and his nightmares continued. While washing his face in the bathroom, he saw the kid that was shot. He was a stand up Soldier, but after Iraq he lost it, and he suffered in silence. (see full statement). 3. The applicant provides: a. Orders Number 131-0712, issued by Headquarters, 101st airborne Division (Air Assault) and Fort Campbell, 11 May 2005, which shows, in part, his discharge from the Regular Army, effective 20 May 2005. b. A Veteran Affairs letter, 8 December 2020, which shows his service connection for post-traumatic stress disorder (PTSD) with depression, anxiety and alcohol abuse. 4. A review of the applicant's service record shows: a. On 25 August 2002, he enlisted in the Regular Army. He completed training and he was awarded military occupational specialty 25U (Signal Support Systems Specialist). b. The applicant served in Iraq; however, his exact dates of service are not available in his records. c. Several DA Form 4856’s (Developmental Counseling Form), which shows on: * 15 September 2003, applicant failed to obey orders and regulations * 4 October 2003, applicant failed to follow orders * 6 October 2003, applicant failed to maintain control and accountability of sensitive items (ammunition), and disobeying an order * 13 October 2003, applicant failed to be at his place of duty d. On 21 October 2003, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice. [Applicant] was aware of his duties at or near Mosul, Iraq from about 3 October 2003 to 8 October 2003. He was derelict in the performance of those duties, and by failing to maintain control and accountability of his ammunition. His punishment consisted of reduction to private (PVT)/E-2, suspended, to be automatically remitted if not vacated before 17 April 2004; 14 days of extra duty and 14 days of restriction. e. Several DA Form 4856’s, which shows on: * 23 October 2003, applicant failed to be at his place of duty * 3 March 2004, applicant disobeyed an order, and made false statements * 5 March 2004, applicant failed to be at his place of duty f. On 5 March 2004, the applicant accepted NJP under Article 15, Uniform Code of Military Justice. He failed to go to his place of duty at or near Fort Campbell, KY, on or about 4 March 2004. His punishment consisted of reduction to private (PVT)/E-2, 14 days of extra duty and 14 days of restriction. g. DA Form 4856 that shows on: * 24, 25 and 26 March 2004, the applicant failed to be at his place of duty * 30 March 2004, applicant disobeyed an order, and made false statements h. On 5 May 2004, the applicant accepted NJP under Article 15, Uniform Code of Military Justice. He was restricted to the limits of places of duty and worship, dining and medical facilities, at or near Fort Campbell, KY on or about 27 March 2004, and [applicant] did break the said restriction. His punishment consisted of reduction to private, (PVT)/E-1, suspended, to be automatically remitted if not vacated before 5 September 2004; forfeiture of $596.00, suspended, to be automatically remitted if not vacated before 5 September 2004; and 45 days extra duty and 45 days of restriction. i. DA Form 4856 shows, the applicant was counseled on 10 May 2004, for failure to report to extra duty and for disobeying a lawful order. j. DD Form 2808 (Report of Medical Examination), and DD Form 2807-1 (Report of Medical History) was completed on 13 May 2004, which does not show evidence of psychiatric issues. k. DA Form 3822-R (Report of Mental Status Evaluation), completed on 19 May 2004, which shows, in part, [applicant’s] behavior as “normal” and he was psychiatrically cleared for any administrative action deemed appropriate by command. l. DA Form 4856 shows the applicant was counseled on 24 May 2004 for failure to report to duty and for disobeying a lawful order. m. On 8 June 2004, his duty status changed from present for duty (PDY) to an absent without leave (AWOL) status. n. On 15 July 2004, his duty status changed from AWOL to PDY. o. On 21 July 2004, his status changed from PDY to AWOL and on 23 August 2004, the applicant was dropped from the rolls (DFR). p. On 26 August 2004, his duty status changed from DFR to PDY. q. His record shows several failed urinalysis testing during the time period from 27 August 2004 to 2 September 2004. r. On 6 October 2004, by memorandum, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for commission of a serious offense. He recommended an other than honorable conditions discharge and advised the applicant of his rights. s. On 7 October 2004, the applicant acknowledged receipt of his commander's intent to initiate separation action against him for commission of a serious offense. He consulted with counsel who advised him of the basis for the contemplated action to separate him under AR 635-200, Chapter 14-12c, and its effect; of the rights available to him; and the effect of any action taken by him in waiving his rights. He declined making a statement on his own behalf. He acknowledged: * he understood the effect of any waiver of rights; of the least favorable discharge he may receive as a result of the action; and the effect of each type of discharge/characterization of service * he understood that, as the result of issuance of a discharge certificate/ character of service which is less than honorable, he may make application to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading; however, he realizes that consideration by either board does not automatically imply upgrading * he understood he may expect to encounter substantial prejudice in civilian life if a discharge/character of service any less favorable than honorable is issued to him t. On 18 October 2004, the applicant's immediate commander initiated separation action against the applicant under chapter 14-12c of AR 635-200 for commission of a serious offense. He recommended an other than honorable conditions discharge. The intermediate commander recommended approval. u. On 22 October 2004, the separation authority approved his discharge under the provision of AR 635-200, Chapter 14, paragraph 12c, and directed the issuance of an other than honorable conditions discharge. v. On 11 May 2005, Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, published Orders Number 131-0712 ordering his discharge effective 20 May 2005. w. On 20 May 2005, the applicant was discharged. His DD Form 214 shows he was discharged in accordance with chapter 14 of Army Regulation (AR) 635-200 (Personnel Separations) for misconduct. His DD Form 214 also shows he completed 2 years and 11 days of active service and in Item 29 (Dates of Time Lost During this Period); Under 10 USC 972 20041120-20050520; 20040608-20040819. 5. By regulation (AR 635-200), chapter 14 states action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. Specific categories include 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), commission of a serious offense, and convictions by civil authorities. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 6. In reaching its determination, the Board should consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 7. 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) & Health Artifacts Image Solutions (HAIMS) only contains radiology results. His hardcopy medical record was not available for review. A review of his service record indicates he completed a mental status evaluation on 19 May 2004 and a separation physical on 20 May 2004. He met retention standards IAW AR 40-501 and was cleared for administrative separation. a. A review of JLV indicates the applicant’s PTSD was determined to be service connected for treatment purposes only. 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 behavioral health diagnosis at the time of his discharge. The applicant met retention standards at the time of his discharge. b. Under liberal guidance, PTSD is a mitigating factor for the misconduct that led to his discharge. Kurta Questions: * Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes * Did the condition exist or experience occur during military service? Yes * Does the condition experience actually excuse or mitigate the discharge? Yes * Does the condition or experience outweigh the discharge? Yes BOARD DISCUSSION: 1. 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 discharged from active duty due to Misconduct. The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding documentation to support 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 the misconduct that led to his discharge. While the Board believed his service certainly did not rise to the level required for an honorable discharge, based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error but was unjust and voted to upgrade it to general, under honorable conditions. 2. The Board determined his service did not rise to the level required for an honorable discharge because 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. The applicant has instances of lost time and had court-martial charges preferred angst him. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 20 May 2005 showing his character of service as Under Honorable Conditions, General. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge to fully 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. REFERENCES: 1. Title 10, United States Code, 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 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Specific categories include 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), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 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. 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 under other than honorable conditions, 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 DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole, or in part, to: mental health conditions, including PTSD; TBI; sexual assault; sexual harassment. Boards were directed 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 that misconduct which 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) AR20210017600 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1