IN THE CASE OF: BOARD DATE: 14 December 2022 DOCKET NUMBER: AR20220003358 APPLICANT’S REQUEST: Upgrade of his under honorable conditions (general) discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: Online DD Form 293 (Application for the Review of Discharge) FACTS: 1. Standard of Review. When arriving at its findings and making its determinations, the Board shall review the petition for requested relief independent from any previous petitions submitted to the Army Discharge Review Board or the Army Board for Correction of Military Records (ABCMR). 2. The applicant states, during the time of his separation from service, he was having trouble adjusting back to civilian life from overseas. He didn’t understand what he was going through. He was not acting as himself. He did seek help and was found to have Post-Traumatic Stress Disorder (PTSD) which is service connected. From the time of his treatment for this, he has been more aware of how this affects his life. He regrets that he couldn’t get the necessary help while still active in the military. He does believe if found earlier, he would have furthered his career in the Army. Since starting treatment, he has not gotten in any trouble and has furthered his education. 3. The applicant enlisted in the Regular Army on 19 October 2005, upon completion of training, he was awarded military occupational specialty 13D (Field Artillery Automated Tactical Data System Specialist). 4. On 15 September 2006, the Fort Bliss Military Police (MP) were telephonically notified of an assault. An investigation revealed the applicant was involved in a verbal altercation with another Soldier and struck him in the face knocking him unconscious. He was apprehended and transported to the MP station where he was advised of his rights, which he waived. He rendered a statement admitting to the offense. He was released to his unit for disciplinary or administrative action. 5. The applicant served in Southwest Asia from on or about 29 October 2006 through on or about 10 December 2007. 6. On 13 January 2008, officers of the El Paso Police Department responded to an incident of family violence. An investigation revealed the applicant was involved in a verbal altercation with his spouse. The spouse indicated the altercation turned physical when the applicant grabbed her and pushed her into the walls causing her nose to bleed. He also pulled her by the shirt and choked her in an attempt to drag her from the residence. He was transported to the County Detention Facility and charged with assault causing bodily injury and spousal abuse. He was then released to the MP station which in turn released him to his unit. 7. The previous ABCMR record of proceedings (ROP) indicates, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on 31 March 2008 for willfully disobeying a lawful order. 8. On 26 April 2008, the El Paso Police Department responded to an incident of family disturbance. An investigation revealed the applicant was involved in a verbal altercation with his spouse. The spouse indicated the altercation turned physical when the applicant retrieved an aluminum bat and pushed her in the stomach and tapped her on the head with the bat. He also grabbed her by her arm and dragged her out of the apartment. He further grabbed her by her throat and started to choke her. The applicant refused to speak with the officers and when they attempted to apprehend him, he became non-compliant and refused to let the officers handcuff him. He was transported to the County Detention Facility and charged with aggravated assault with a deadly weapon, resisting arrest/search/transport, and spousal abuse. He was then released to the MP station which in turn released him to his unit. 9. The previous ROP states the applicant again received NJP under the provisions of Article 15 of the UCMJ, on 23 August 2008 for willfully disobeying a lawful order. 10. On 2 September 2008, the applicant was seen for a psychiatric evaluation. The examining physician noted there was no evidence of any mental disease or defect, which would warrant a disposition through medical/psychiatric channels. The applicant reported no suicidal or homicidal thoughts at that time. He was cleared for any administrative action deemed appropriate by command. 11. The applicant's immediate commander notified him on 20 October 2008, that he was initiating actions to separate him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 14-12c (Commission of a Serious Offense), specifically citing the applicant's willful disobedience of a lawful order (three times), failure to report (two times), assault (three times) and other misconduct. 12. The applicant's immediate commander formally recommended his separation under the provisions of Army Regulation 635-200, Chapter 14-12c, for misconduct. His commander noted the applicant's two NJPs for willfully disobeying a lawful order. 13. On 21 October 2008, the applicant consulted with counsel and was advised of the basis for the contemplated separation action, the possible effects of the discharge, and the procedures/rights available to him. He indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him and he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result. He elected to submit a statement in his own behalf; however, his statement is not available for review. 14. On 23 October 2008, consistent with the chain of command's recommendation the separation authority approved the separation action with the issuance of an under honorable conditions discharge characterization. 15. The applicant was discharged on 14 November 2008. His DD Form 214 (Certificate of Release from Active duty) confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 14-12c, for misconduct (serious offense). His service was characterized as under honorable conditions (general). He completed 3 years and 26 days of net active service this period. He was awarded or authorized the Valorous Unit Award, National Defense Service Medal, Global War on Terrorism Service Medal, Iraq Campaign Medal with Campaign Star, Army Service Ribbon, Overseas Service Ribbon and the Driver and Mechanic Badge with Driver – Wheeled Vehicle(s) Clasp. 16. The ABCMR staff requested that the applicant provide medical documents to support his PTSD condition on 11 September 2022. He did not respond. 17. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 18. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 19. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under honorable conditions (general) discharge to honorable. He contends he had mental health condition that mitigated his misconduct, PTSD. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted into the Regular Army on 19 October 2005; 2) The applicant completed a combat deployment to Iraq from 29 October 2006 through 10 December 2007; 3) The applicant was found guilty of committing three instances failure to follow a lawful order, two instances of failure to report to his place of duty, one instance of assaulting another Soldier, and two instances of domestic assault of his spouse between September 2006-September 2008; 4) The applicant was discharged on 14 November 2008 with a Chapter 14-12c, for misconduct (serious offense). His service was characterized under honorable conditions (general). c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and medical records. The Armed Forces Health Longitudinal Technology Application (AHLTA) and VA’s Joint Legacy Viewer (JLV) were also reviewed. d. The applicant attended two sessions of individual therapy beginning in May 2008. He did report symptoms of PTSD, but he was formally diagnosed with Adjustment Disorder. He was not consistent with individual therapy, but he was referred for and attended a few sessions of psychiatric medication management. The applicant was command referred to the Family Advocacy Program (FAP) in July 2008. He was diagnosed with a Partner Relational Problem. He did not demonstrate good insight or progress in this treatment program. The applicant completed a behavioral health evaluation for his Chapter 14-12c on 02 September 2008. In the report, the applicant stated he had previously been seen by a behavioral health provider and was diagnosed with PTSD. The applicant was not diagnosed with PTSD in this psychiatric evaluation and was cleared for administrative action. e. A review of JLV shows the applicant is 50-percent service-connected for PTSD starting in November 2008. The applicant’s list of problems includes Other Specified Anxiety Disorders, Major Depression, PTSD, and Insomnia. The applicant is not consistent in attending individual therapy, but he continues to attend psychiatric medication management appointments. f. Based on the available information, it is the opinion of the Agency BH Advisor that the applicant has a mitigating BH condition, PTSD. As PTSD is associated with erratic behavior, there is a nexus between his diagnosis of PTSD and his misconduct of failing to follow orders and report to his place of duty. However, there is no nexus between PTSD and domestic violence and/or assault. Kurta Questions A. Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant has been diagnosed with service- connected PTSD from the VA. In addition, he did endorse symptoms of PTSD while on active service. B. Did the condition exist or experience occur during military service? Yes, the applicant was experiencing PTSD after returning from his combat deployment to Iraq. C. Does the condition experience actually excuse or mitigate the discharge? Partial, the applicant has been diagnosed with a BH condition, PTSD, which mitigates some of his misconduct. As there is an association between PTSD, avoidance behavior and difficulty with authority figures, there is a nexus between his diagnosis of PTSD and his offenses of failing to report on two occasions and disobeying a lawful order on three occasions. PTSD, however, does not mitigate the offenses of assaulting another soldier or domestic assault of his spouse as PTSD does not affect one’s ability to distinguish right from wrong and act in accordance with the right BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. The Board recognize the applicant has a mitigating BH condition, PTSD. As PTSD is associated with erratic behavior, there is a nexus between his diagnosis of PTSD and his misconduct of failing to follow orders and report to his place of duty. However, upon review of the applicant’s petition and available military records, the Board concurred with the medical advisory opinion finding PTSD does not mitigate the offenses of assaulting another soldier or domestic assault of his spouse and PTSD does not affect one’s ability to distinguish right from wrong and act in accordance with the right. The Board concluded there was insufficient evidence of in- service mitigating factors to overcome the misconduct. 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 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, U.S. Code, section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute 2. 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. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally considered appropriate. However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record. 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 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. 5. 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 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. 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) AR20220003358 1 ABCMR Record of Proceedings (cont) AR20220003358 1