IN THE CASE OF:
BOARD DATE:  8 March 2023
DOCKET NUMBER:  AR20220002419 


APPLICANT’S REQUESTS: 

•Reconsideration of his previous request for the Armed Forces ExpeditionaryMedal

•As a new request, amend item 18 (Remarks) to show he deployed to Panama insupport of Operation Just Cause

•As an additional new request, change his character of service from underhonorable conditions to uncharacterized

•Permission to appear personally before the Board, via video/telephone



APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

•DD Form 293 (Application for the Army Discharge Review Board)

•DD Form 149 (Application for Correction of Military Record)

•Joint Uniform Military Pay System (JUMPS) – Army Leave and EarningsStatements (LES) for five months

•Letter of Appreciation

•DD Form 214 (Certificate of Release or Discharge from Active Duty



FACTS: 

1.  Incorporated herein by reference are military records, as were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20190010815, on 27 October 2020. Concerning his new requests, the applicant did not file within the 3-year time frame provided in Title 10, United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). However, the 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 deployed to Panama and his leadership awardedhim the Armed Forces Expeditionary Medal, but he never got the medal, and they failedto show his deployment on his DD Form 214.
a.The applicant was in Panama with his unit (7th Battalion, 15th Field Artillery)starting in late November 1989 until January 1990; while in Panama, the Army paid him "Danger Pay," and he received a letter of appreciation from his battalion commander. His unit subsequently discharged him in April 1990. 

b.The applicant adds that he has been diagnosed with post-traumatic stressdisorder (PTSD), traumatic brain injury (TBI), and other behavioral health issues; he applied for assistance from the Department of Veterans Affairs (VA) in March 2017. 

3.The applicant provides a copy the letter of appreciation he states he received inPanama; the letter is dated 12 December 1989, but it makes no reference to theapplicant being in Panama. As additional evidence, the applicant submits his LESs forthe period November 1989 through March 1990.

a.The applicant's LES for January 1990 shows the Army paid him "Danger Pay" forDecember 1989 and January 1990; the remarks section indicates the "Danger Pay" started, on 1 December 1989, but there is no entry showing the applicant's location. 

b.The applicant's February 1990 LES reflects "Overseas Pay" for December1989 and January 1990; two payments of separate rations; family separation pay; and, in the remarks section, a comment stating the applicant's "Danger Pay" stopped on 30 January 1990.  

4.A review of the applicant's service records show:

a.On 31 October 1985, the applicant enlisted into the Regular Army for 3 years;upon completion of initial entry training and the award of military occupational specialty 13B (Cannon Crewmember), orders assigned him to a field artillery battalion in Germany, and he arrived at this new unit, on 26 February 1986. 

b.Effective 31 December 1987, the applicant's leadership promoted him to specialistfour (SP4)/E-4 and immediately appointed him laterally to corporal (CPL)/E-4. On 29 June 1988, the applicant immediately reenlisted for 3 years; as part of his reenlistment, he requested reassignment to Fort Ord, CA.  

c.On or about 20 December 1988, the applicant completed his tour in Germany,and permanent change of station orders moved him to Fort Ord; on 14 February 1989, the applicant arrived at his unit (6th Battalion, 8th Field Artillery). On or about 21 February 1989, orders transferred him to the 7th Battalion, 15th Field Artillery. 

d.On 21 November 1989, the applicant's battery commander initiated bar toreenlistment action against him because of the applicant's inability to pass the Army Physical Fitness Test.  
(1)The commander wrote, "(The applicant) is a Soldier that has the potential ofbecoming a good noncommissioned officer (NCO), however, he is an unfit Soldier. Leaders are expected to set the example, to enforce and maintain standards for subordinates. [Applicant] has fallen short of meeting the standards in the area of physical fitness." 

(2)The applicant acknowledged the commander's bar to reenlistment action andopted not to submit statement in his own behalf. 

(3)On 22 November 1989, the applicant's battalion commander approved thebar to reenlistment. 

e.On 22 February 1990, the supporting CMHS issued the applicant's Report ofMental Status Evaluation (DA Form 3822-R); the form stated, "This Soldier is psychiatrically cleared for any administrative action deemed appropriate by command." 

f.On 19 March 1990, the applicant's battery commander notified him, viamemorandum, that he was initiating separation action against the applicant, under the provisions of chapter 13 (Separation for Unsatisfactory Performance), paragraph  
13-2 (Criteria), Army Regulation (AR) 635-200 (Personnel Separations – EnlistedPersonnel).

(1)The commander identified his specific reasons as follows: "You failed anAPRT (sic) test on 9 Nov 89 with the following raw scores in each category: Pushups, 50 points, Sit-ups, 70 points, and the 2-Mile Run, 85 points. On 25 Jan 90 you failed another APRT (sic) test with the following raw scores in each category, Pushups, 53 points, Sit-ups, 47 points, and the 2-Mile Run, 50 points. Again, on 1 Feb 90, you failed to meet the minimum Army standards, by failing your APRT (sic) test with the following raw scores in each category, Pushups, 57 points, Sit-ups, 53 points, and the 2 -Mile. Run, 63 points." "You have been counseled reference APRT (sic) standards, possible chapter elimination, APRT (sic) failure, dereliction of duty, and the Army Overweight Program." 

(2)The commander indicated he would recommend the applicant for a generaldischarge under honorable conditions, but the final decision rested with the separation authority.  

g.On 19 March 1990, the applicant's battery commander prepared his separationrecommendation for the separation authority; the commander noted the applicant's poor performance on the Army Physical Fitness Test and included the applicant's bar to reenlistment as a supporting enclosure.  

(1)The commander recommended waiving the regulatory requirement forrehabilitation, and he checked a block that stated, "(it would) be inappropriate because the individual is obviously resisting all rehabilitation attempts." 

(2)Under "Evaluation by Soldier's Chain of Command," the entries showed:

•Squad Leader – Conduct-Excellent; Duty Performance-Good; Potential-Poor

•Platoon Sergeant – Conduct-Excellent; Duty Performance-Poor; Potential-Poor

•First Sergeant – Conduct-Excellent; Duty Performance-Poor; Potential-Poor

•Battery Commander – Conduct-Excellent; Duty Performance-Poor;Potential-Poor



h.On 20 March 1990, after consulting with counsel, the applicant acknowledgedcounsel had advised him of the basis for the separation action and informed him of his rights and the effect of waiving those rights. The applicant elected not to submit statements in his own behalf.  

i.On 22 March 1990, the separation authority (the applicant's battalion commander)approved the battery commander's separation recommendation and directed the applicant's general discharge under honorable conditions; on 9 April 1990, orders discharged the applicant accordingly.  

(1)The applicant's DD Form 214 shows he completed 4 years, 5 months, and7 days of net active-duty service, of which he served 1 year, 9 months, and 12 days on his 3-year reenlistment contract.  

(2)Item 13 (Decorations, Medals, Badges, Citations, and Campaign RibbonsAwarded or Authorized) reflects the following: 

•Army Service Ribbon

•Overseas Service Ribbon

•NCO Professional Development Ribbon

•Army Achievement Medal

•Two Marksmanship Qualification Badges



(3)Item 18 (Remarks) does not show the applicant's continuous honorableservice, from 19851031 to 19880628, and there is no entry indicating the applicant deployed to Panama in support of Operation Just Cause.  

j.On 28 June 2019, the applicant petitioned the ABCMR, requesting the award ofthe Armed Forces Expeditionary Medal, based on his participation in Operation Just Cause.  

(1)A document, titled, "History Office, XVIII Airborne Corps and Joint TaskForce South, Operation Just Cause, List of Participating Units" listed the applicant's unit (7th Battalion, 15th Field Artillery) as a participant.  

(2)On 27 October 2020, the Board reviewed the application and all supportingevidence and determined relief was not warranted. The Board stated it had carefully considered the applicant's contentions, but his record was void of any supporting proof of his participation in Operation Just Cause, and the applicant had not included deployment orders, personal awards, or any contemporaneous evidence that would have supported his claims.  

5.AR 15-185 (ABCMR) states an applicant is not entitled to a hearing before theBoard; however, the request for a hearing may be authorized by a panel of the Board orby the Director of ABCMR.

6.Regarding the applicant's reconsideration request for the Armed ForcesExpeditionary Medal, AR 600-8-22 (Military Awards), currently in effect, prescribespolicies and procedures for military awards and decorations.

a.Service members of the United States Armed Forces may receive the ArmedForces Expeditionary Medal when they: 

•"Participate, or have participated, as members of the U.S. military units in aU.S. military operation in which Servicemembers of any military departmentparticipate, in the opinion of the Joint Chiefs of Staff, in significant numbers"

•"Encounter during such participation foreign-armed opposition, or areotherwise placed, or have been placed, in such position that, in the opinion ofthe Joint Chiefs of Staff, hostile action by foreign armed forces were imminenteven though it did not materialize"



b.Three categories of operations qualify for this award, and the authorizedoperations are listed respectively in three tables: 

(1)Table 2-3 (Armed Forces Expeditionary Medal) – U.S. military operations,such Panama Operation JUST CAUSE. 

(2)Table 2-4 (Armed Forces Expeditionary Medal – Designated U.S. Operationsin Direct Support of the United Nations). 

(3)Table 2-5 (Armed Forces Expeditionary Medal – Designated U.S. MilitaryOperations of Assistance for a Friendly Foreign Nation). 

c.Eligible service members must have been bona fide members of a unitparticipating in or be engaged in the direct support of the operation for 30 consecutive days in the area of operation; the regulation further stipulated the support had to involve entering the area of operations and/or one of the following requirements: the service member was: 

•Engaged in actual combat or duty that was equally as hazardous as combatduty during an operation with an armed opposition

•Wounded or injured and required medical evacuation

•Accumulated the required number of days' service while participating as aregularly assigned air crewmember of an aircraft flying sorties into, out of, orover the area in direct support of military operations



7.During the applicant's era of service, the regulation authorized commanders toseparate Soldiers under the provisions of chapter 13, AR 635-200.

a.Commanders could initiate separation action when:

•Soldiers demonstrated they would not sufficiently develop to adequatelyparticipate in further training and/or become a satisfactory Soldier;

•The seriousness of the circumstances were such that the Soldier's retentionwould have an adverse effect on military discipline, good order, and morale;

•The Soldier was a disruptive influence and the causes for a separationrecommendation were likely to continue; and/or

•The Soldier's ability to perform duties effectively in the future, to includehis/her potential for advancement or leadership, was unlikely



b.Before initiating separation action, commanders were required to ensure theSoldier received adequate counseling and rehabilitation. The regulation stated, "Because military service is a calling different from any civilian occupation, a Soldier should not be separated when unsatisfactory performance is the sole reason unless there have been efforts at rehabilitation." 

c.Separation authorities could issue the Soldier either an honorable or a underhonorable conditions character of service. 

8.AR 350-15 (The Army Physical Fitness Program), in effect at the time, prescribedpolicies and procedures for the Army's physical fitness program.

a.Paragraph 6d (Physical Fitness Policy) stated, "Soldiers who are unable to meetphysical fitness testing standards or the mission-related physical fitness standards required of their units may be subjected to the same administrative action as they are for inability to perform any other mission-essential individual task."  

b.Paragraph 12 (Incentives and Corrective Action). This paragraph requiredcommanders to consider Soldiers for separation, when they did not have medical profiles but repeatedly failed to meet standards and displayed no significant, continuing progress; the paragraph cited AR 635-200 as the authority for separation but did not specify which provision commanders were to use.  

9.The applicant requests the Board change his general discharge under honorableconditions to uncharacterized. Per paragraph 3-9 (Uncharacterized Separation),AR 635-200, in effect at the time, the uses for uncharacterized characters of servicewere limited to two circumstances:

a.Soldiers who were in an entry-level status were required to receive anuncharacterized separation; for Regular Army Soldiers, entry-level status began upon their entrance on active duty and ended after 180 days of continuous active duty. 

b.Soldiers whose separation was based on a voided enlistment also received anuncharacterized character of service; an enlistment was voided when: 

•The enlistment was accomplished without the voluntary consent of a personwho had the capacity to understand the significance of an Army enlistment;this included individuals who were intoxicated or insane at the time theyenlisted

•The person enlisting was under 17 years of age

•The enlistee was a deserter from another military service

•The individual erroneously enlisted (i.e., the Army would not have allowed theperson to enlist if certain relevant facts were known and no fraud wasinvolved), and this was discovered prior to the Soldier leaving the MilitaryEntrance Processing Station



10.Clemency guidance to the Boards for Correction of Military/Navy Records(BCM/NR) does not mandate relief, but rather provides standards and principles toguide Boards in application of their equitable relief authority to ensure each case will beassessed on its own merits. In determining whether to grant relief BCM/NRs shallconsider the prospect for rehabilitation, external evidence, sworn testimony, policychanges, relative severity of misconduct, mental and behavioral health conditions,official governmental acknowledgement that a relevant error or injustice was committed,and uniformity of punishment. This includes consideration of changes in policy, wherebya service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 

11.Published guidance to the BCM/NRs clearly indicates that the guidance is notintended to interfere or impede on the Board's statutory independence. The Board willdetermine the relative weight of the action that led to the discharge and whether itsupports relief or not. In reaching its determination, the Board shall consider theapplicant's petition, available records and/or submitted documents in support of thepetition.

12.MEDICAL REVIEW:

a.The applicant is applying to the ABCMR requesting his under honorableconditions, general, discharge be changed to reflect uncharacterized, reconsideration of his previous request for the Armed Forces Expeditionary Medal, an amendment to item 18 of his DD Form 214 to reflect he deployed to Panama.   
b.The specific facts and circumstances of the case can be found in the ABCMRRecord of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted into the Regular Army on 31 October 1985. Upon completion of initial entry training, orders assigned him to a field artillery battalion in Germany, and he arrived at on 26 February 1986; 2) On or about 20 December 1988, the applicant completed his tour in Germany, and PCS orders moved him to Fort Ord, where he arrived on 14 February 1989 and on 21 February 1989 was assigned to the 7th Battalion, 15th Field Artillery; 3) On 21 November 1989, the applicant's battery commander initiated bar to reenlistment action against him because of the applicant's inability to pass the Army Physical Fitness Test; 4) On 19 March 1990, the applicant's battery commander notified him, via memorandum, that he was initiating separation action against the applicant, under the provisions of chapter 13-2 of AR 635-200 for repeated failure of APFT; 5) On 9 April 1990, orders discharged the applicant accordingly.  

c.A review of the electronic military medical record (AHLTA) was not conducted asthe system was not in use during the applicant’s time in service.  Included in the applicant’s packet was a DA Form 3822-R (Report of Mental Status Evaluation) dated 22 February 1990 that showed the applicant was psychiatrically cleared for any administrative separation deemed appropriate by command.  No other hardcopy BH-related records were provided for review.  A review of the VA electronic medical record (JLV) showed the applicant 90 percent service-connected (SC) and 70 percent SC for PTSD associated with his deployment to Panama.  VA C&P Evaluations dated 20 February 2019 and 28 August 2019, showed the applicant endorsed repeated traumatic exposures to sniper and small arms fire, resulting in ongoing fear of death.  Reported symptoms included nightmares, withdrawal, intrusive recollection, anger, irritability, and generalized fear of being outdoors and around people. 




d. The applicant appears to have first engaged the VA for BH-related care at the , VA on 30 May 2017, as a PCM referral for anxiety related issues.  He reported a history anxiety and panic “for as long as he can remember”, and depressive symptoms since 2009 secondary to the death of multiple family members; he was diagnosed with Mood Disorder, prescribed psychotropic medication and scheduled for follow-up.  On 13 June 2017 the applicant was seen in the substance abuse outpatient clinic, as a referral from his medication manager, due to concerns with excessive alcohol consumption.  The applicant reported symptoms consistent with alcohol abuse and shared concerns he may be suffering from PTSD related to his deployment to Panama.  The applicant was diagnosed with Alcohol Use Disorder Moderate and Unspecified Anxiety Disorder with a rule-out of Social Anxiety.  The provider noted his intent for further explore possible PTSD in later sessions.  The applicant was enrolled in the outpatient addiction treatment program.   e. During a 28 September 2017 encounter the applicant recalled a traumatic experience during his time in Panama characterized by exposure to bombs going off around him and being knocked off his feet by the forces of 20 helicopters flying over him.  He also recalled instances of sniper and small arms fire.  The provider added a rule-out of PTSD to the applicant’s problem list. Encounter visit dated 5 December 2018 showed the applicant was diagnosed with PTSD and was being enrolled in PTSD residential treatment program.  The provider noted the applicant had remained actively engaged in outpatient substance treatment, BH-medication management, and therapy. Records show the applicant has remained engaged in BH-related services with the VA with the most recent encounter having occurred December 2022. f. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence in the records that the applicant had a condition or experience that mitigated his misconduct.   Kurta Questions: 
1.Does any evidence state that the applicant had a condition or experience thatmay excuse or mitigate a discharge? Yes.  The applicant is 70 percent SC forPTSD reportedly related to his deployment to Panama.



2.Did the condition exist or experience occur during military service? Yes.



3.Does the condition or experience actually excuse or mitigate the discharge?Yes.  The applicant was administratively separated due to multiple APFTfailures. The applicant asserts the APFT failures occurred after returning fromhis assignment in supported of Operation Just Cause, and after traumaticexposures. This advisor is cognizant that a determination still must be madeas to whether the applicant deployed in support of the operation and writesthe following opine with that in mind.  If it is determined that applicant didserve in the conflict region, his diagnosis of PTSD associated with that deployment would be a mitigating factor in his administrative separation because there is an association with PTSD and reduced motivation, change in mood, difficulty focusing, and other symptoms that could have negatively impacted that applicant’s ability to pass his APFT.  Given the above this advisor recommends the Board considers an upgrade to HD.     



BOARD DISCUSSION: 

1.After reviewing the application, all supporting documents, and the evidence foundwithin the military record, the Board found that partial relief was warranted. The Boardcarefully considered counsel’s statement, the applicant's record of service, documentssubmitted in support of the petition and executed a comprehensive and standard reviewbased on law, policy and regulation, and published Department of Defense guidance forliberal and clemency determinations requests for upgrade of his characterization ofservice.  The Board determined there was sufficient evidence within the applicant’srecord to support his deployment in support of Operation Just Cause in Panama. Uponfurther review of the applicant’s petition, available military records and the medicalreview, the Board concurred with the advising official finding that the applicant did servein the conflict region, his diagnosis of PTSD associated with that deployment would be amitigating factor in his administrative separation because there is an association withPTSD and reduced motivation, change in mood, difficulty focusing, and other symptomsthat could have negatively impacted that applicant’s ability to pass his APFT.  Given theabove this advisor recommends the Board considers an upgrade to honorable.

2.The Board agreed that the applicant did not meet the criteria for an uncharacterizeddischarge. The applicant completed his initial training and was awarded an militaryoccupational specialty of 13B (Cannon Crewmember). Per regulatory guidance theapplicant was not eligible for that type of discharge characterization.  However, basedon the applicant’s deployment to Panama, the applicant met the criteria for award of theArmed Forces Expeditionary Medal. Based on this, the Board granted partial relief foran upgrade to honorable, correct for his deployment to Panama and award of theAFEM.

3.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 equitabledecision.  As a result, a personal appearance hearing is not necessary to serve theinterest of equity and justice in this case.

4.Prior to closing the case, the Board did note the analyst of record administrativenotes below, and recommended the correction is completed to more accurately depictthe military service of the applicant
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 amendinghis DD Form 214 to show in

•Item 13 (Decorations, Medals, Badges, Citation Ribbons Awarded or Authorized):Armed Forces Expeditionary Medal



•Item 18 (Remarks) SERVICE IN PANAMA IN SUPPORT OF OPERATION JUSTCAUSE 30 November 1989 through 30 January 1990



•Item 24 (Character of Service) Honorable



2.The Board further determined the evidence presented is insufficient to warrant aportion of the requested relief.  As a result, the Board recommends denial of so much ofthe application that pertains to upgrading the applicant’s characterization touncharacterized.


Microsoft Office Signature Line...

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 militaryrecords must be filed within 3 years after discovery of the alleged error or injustice. Thisprovision of law also allows the ABCMR to excuse an applicant's failure to timely filewithin the 3-year statute of limitations if the ABCMR determines it would be in theinterest of justice to do so.

2.Title 10, United State Code, section 1556 (Ex Parte Communications Prohibited)provides the Secretary of the Army shall ensure that an applicant seeking correctiveaction by ARBA is provided a copy of all correspondence and communications,including summaries of verbal communications, with any agencies or persons externalto agency or board, or a member of the staff of the agency or Board, that directlypertains to or has material effect on the applicant's case, except as authorized bystatute.

3.AR 600-8-22 (Military Awards), currently in effect, prescribes policies and proceduresfor military awards and decorations.

a.Service members of the United States Armed Forces may receive the ArmedForces Expeditionary Medal when they: 

•"Participate, or have participated, as members of the U.S. military units in aU.S. military operation in which Servicemembers of any military departmentparticipate, in the opinion of the Joint Chiefs of Staff, in significant numbers"



b.Three categories of operations qualify for this award, and the authorizedoperations are listed respectively in three tables: 

(1)Table 2-3 (Armed Forces Expeditionary Medal) – U.S. military operations,such Panama Operation JUST CAUSE. 

(2)Table 2-4 (Armed Forces Expeditionary Medal – Designated U.S. Operationsin Direct Support of the United Nations). 

(3)Table 2-5 (Armed Forces Expeditionary Medal – Designated U.S. MilitaryOperations of Assistance for a Friendly Foreign Nation). 

c.Eligible service members must have been bona fide members of a unitparticipating in or be engaged in the direct support of the operation for 30 consecutive days in the area of operation; the regulation further stipulated the support had to involve entering the area of operations and/or one of the following requirements; the service member was: 

•Engaged in actual combat or duty that was equally as hazardous as combatduty during an operation with an armed opposition

•Wounded or injured and required medical evacuation

•Accumulated the required number of days' service while participating as aregularly assigned air crewmember of an aircraft flying sorties into, out of, orover the area in direct support of military operations



4.AR 635-200, in effect at the time, prescribed policies and procedures for theadministrative separation of enlisted personnel.

a.Paragraph 3-7a (Honorable Discharge) stated an honorable discharge wasseparation 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 3-9 (Uncharacterized Separations). The uses for uncharacterizedcharacters of service were limited to two circumstances: 

(1)Soldiers who were in an entry-level status were required to receive anuncharacterized separation; for Regular Army Soldiers, entry-level status began upon their entrance on active duty and ended after 180 days of continuous active duty. 

(2)Soldiers whose separation was based on a voided enlistment also receivedan uncharacterized character of service; an enlistment was voided when: 

•The enlistment was accomplished without the voluntary consent of aperson who had the capacity to understand the significance of an Armyenlistment; this included individuals who were intoxicated or insane at thetime they enlisted

•The person enlisting was under 17 years of age

•The enlistee was a deserter from another military service

•The individual erroneously enlisted (i.e., the Army would not have allowedthe person to enlist if certain relevant facts were known and no fraud wasinvolved), and this was discovered prior to the Soldier leaving the MilitaryEntrance Processing Station



c.Chapter 13 (Separation for Unsatisfactory Performance).

(1)The commanders could initiate separation action when:

•Soldiers demonstrated they would not sufficiently develop to adequatelyparticipate in further training and/or become a satisfactory Soldier;

•The seriousness of the circumstances were such that the Soldier'sretention would have an adverse effect on military discipline, good order,and morale;

•The Soldier was a disruptive influence and the causes for a separationrecommendation were likely to continue; and/or

•The Soldier's ability to perform duties effectively in the future, to includehis/her potential for advancement or leadership, was unlikely

•The Soldier met the medical retention standards outlined in


AR 40-501 (Standards of Medical Fitness)

(2)Before initiating separation action, commanders were required to ensure theSoldier received adequate counseling and rehabilitation. The regulation stated, "Because military service is a calling different from any civilian occupation, a Soldier should not be separated when unsatisfactory performance is the sole reason unless there have been efforts at rehabilitation." 
 
  (3)  Separation authorities could issue the Soldier either an honorable or a under honorable conditions character of service. 
 
5.  AR 350-15 (The Army Physical Fitness Program), in effect at the time, prescribed policies and procedures for the Army's physical fitness program.  
 
 a. Paragraph 6d (Physical Fitness Policy) stated, "Soldiers who are unable to meet physical fitness testing standards or the mission-related physical fitness standards required of their units may be subjected to the same administrative action as they are for inability to perform any other mission-essential individual task."  
 
 b. Paragraph 12 (Incentives and Corrective Action). This paragraph required commanders to consider Soldiers for separation when they did not have medical profiles but repeatedly failed to meet standards and displayed no significant, continuing progress; the paragraph cited AR 635-200 as the authority for separation but did not specify which provision commanders were to use.  
 
6.  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.  
 
7.  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; Traumatic Brain Injury; 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.  
 
8.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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.  

a.This guidance does not mandate relief, but rather provides standards andprinciples 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. 

b.Changes to the narrative reason for discharge and/or an upgraded character ofservice 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.   

9.AR 15-185 (ABCMR) states an applicant is not entitled to a hearing before theBoard; however, the request for a hearing may be authorized by a panel of the Board orby the Director of ABCMR.

//NOTHING FOLLOWS//