IN THE CASE OF: BOARD DATE: 21 July 2023 DOCKET NUMBER: AR20220010493 APPLICANT REQUESTS: reconsideration of his request for an upgrade of his under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) with self-authored statement * Memorandum, Headquarters, 2nd Battalion, 198th Armor, Mississippi Army National Guard, Greenville, MS, dated 5 June 1989 * Self-authored statement, dated 10 June-1989 * Memorandum, Subject: Separation Under Army Regulation 135-178, dated 30 August 1989 * National Guard Bureau (NGB) Form 22 (NGB – Report of Separation and Record of Service), for the period ending 11 September 1989 * Initial Post-Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire (DBQ), dated 28 July 2020 * Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), undated * three statements of support, dated 26 January 2021 to 30 January 2023 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20170011293 on 18 September 2019. AR20170011293 contains facts and service records pertaining to two other Soldiers with the same name as the applicant but different social security numbers. Additionally, the case contains facts and records for one other Soldier with a different name and social security number. 2. As a new argument, the applicant states, in effect, he endured an assault and sexual trauma during his time in the service which caused the drug and alcohol use. It also led to his PTSD diagnosis. He was abused on several occasions. It killed his hopes of making the military a career. He is not the man he was before entering the military. He is undergoing counseling now and asking to be compensated for actions done to him by others that were out of his control. 3. The applicant’s complete military service record is not available for review in this case. The National Personnel Records Center - Military Personnel Records was unable to locate the applicant's military records upon request. However, the applicant provided sufficient records to conduct a fair and impartial review of this case. 4. The applicant enlisted in the Mississippi Army National Guard (MSARNG) on 22 December 1982. He was called to active duty for the completion of his initial active duty for training (IADT). He was awarded military occupational specialty (MOS) 19K (Armor Crewman). 5. He was honorably relieved from active duty on 29 September 1983 upon completion of IADT. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was credited with 3 months and 17 days of net active service for this period. He returned to the control of the MSARNG. 6. The applicant was notified by his immediate commander on 5 June 1989 that separation action was initiated to separate him from the MSARNG in accordance with Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations), Chapter 7, by reason of misconduct. The commander stated the specific reason for his recommendation was that the applicant tested positive for cocaine during a urinalysis on or about 6 May 1989. The applicant was further advised: a. He had the right to consult with an appointed counsel or civilian counsel at his personal expense; to submit written statements on his behalf; to a hearing before an administrative separation board if he had 6 or more years of total active and/or reserve service at the time of separation; or he may waive his rights in writing. b. He was further advised that he had to acknowledge this memorandum within 30 calendar days of receipt. Any statements he desired to submit on his behalf must reach the commander within 30 calendar days after receipt of the memorandum unless an extension was requested and granted. Failure to respond within 30 calendar days would constitute a waiver of his rights. c. The applicant provided a self-authored statement on 10 June 1989, wherein he states, in pertinent part, he came forward to Lieutenant C prior to the urinalysis and admitted to using drugs. He was in the process of being rehabilitated. However, he was in the wrong type of facility and sent home. He is willing to do anything to remain in his unit. 7. The applicant was discharged from the MSARNG and the Reserve of the Army on 11 September 1989 under the provisions of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 8-26q, without personal notice due to his absence from the unit. His NGB Form 22 shows he was credited with 6 years, 8 months, and 21 days of net service with a under honorable conditions (general) characterization of service. 8. National Guard Regulation 600-200, Chapter 8, provides for the discharge of enlisted personnel from the Reserve of the Army and/or the State Army National Guard. Paragraph 8-26q of the regulation, in effect at the time, governed separation for acts or patterns of misconduct which included the abuse of illegal drugs. 9. The ABCMR reviewed the applicant's petition for an upgrade of his discharge on 18 September 2019. After careful consideration, the Board determined his characterization of service was neither in error nor unjust. Accordingly, his request for relief was denied. 10. The applicant provides the following: a. A copy of his PTSD DBQ, dated 28 July 2020, which shows the applicant was diagnosed with PTSD, Major Depressive Disorder (single episode), Panic Disorder, Unspecified Anxiety Disorder, and Neurocognitive Disorder. He self-reported being sexually and physically abused during his years in the ARNG which led to his use of alcohol and cocaine. b. Three statements of support, dated between 26 January 2021 and 30 January 2023, from physicians that have treated the applicant, they attest to the applicant’s diagnosis of PTSD related to trauma he experienced while in the military. 11. The authority granted by Title 10, U.S. Code, Section 1552 (Correction of Military or Naval Records) is not unlimited. The ABCMR has the authority to correct only Army records. The Board has no authority to correct records created by the Department of Defense, other branches of the Services, Department of Veterans Affairs, or any other governmental agency. ARNG discharges, as documented on NGB Form 22, are functions of the State under the legal authority of Title 32 and are not Federal actions. As such, they are primarily under the control of the State Adjutant General. The ABCMR may only recommend possible actions. 12. The Board should consider the applicant's argument and/or evidence in accordance with the published equity, injustice, or clemency determination guidance. 13. Based upon the applicant's contention of PTSD and Sexual Assault/Harassment, the Army Review Board Agency medical staff provides a written review of the applicant's medical records, outlined in the "MEDICAL REVIEW" section of this Record of Proceedings. 14. MEDICAL REVIEW: a. The applicant requests reconsideration of his previous request to upgrade his under honorable conditions, general, to honorable. He contends his misconduct was related to 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 Mississippi Army National Guard (MSARNG) on 22 December 1982; 2) The applicant was notified by his immediate commander on 5 June 1989 that separation action was initiated to separate him from the MSARNG in accordance with Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations), Chapter 7, by reason of misconduct. The commander stated the specific reason for his recommendation was that the applicant tested positive for cocaine during a urinalysis on or about 6 May 1989; 3) The applicant was discharged from the MSARNG and the Reserve of the Army on 11 September 1989 under the provisions of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 8-26q, without personal notice due to his absence from the unit. c. The VA electronic medical record (JLV), ROP, and casefiles were reviewed. The military electronic medical record (AHLTA) was not reviewed as it was not in use during the applicant’s time in service. No military BH records were provided for review. A review of JLV showed the applicant is 100 SC for PTSD. VA C&P Examination, dated 28 July 2020, showed the applicant was diagnosed with PTSD secondary to MST endured while in the Mississippi National Guard. The applicant reported an extended history of sexual and physical abuse from fellow Guardsmen and purportedly did not report the abuse due to shame and fear. During the examination the applicant was deemed to have met diagnostic criteria for PTSD, MDD, Panic Disorder, Unspecified Anxiety Disorder, and Neurocognitive Disorder. d. The applicant’s first BH engagement with the VA appears to have occurred at the Salisbury NC VA on 30 May 2019, whereby he presented with complaints of anxiety, depression, sleep difficulties, and nightmares related to his time in military service. He reported that during service he faced persistent racial discrimination and had two friends who committed suicide after being forced out of the military due to racism. He also reported the loss of his 17-year-old suicide who was shot, and a 2-year-old grandson who was beat to death by his stepfather. Additionally, he reported nightmare of tanks firing and being in the woods during training exercises. He was diagnosed with MDD and Adjustment Disorder unspecified and scheduled for outpatient treatment. e. Encounter note dated 13 June 2019 showed the applicant reported struggles with being forced out of the military, as he wanted to make it a career. He recalled being called “black” by a senior NCO who brought the applicant and others into a room to ask if they had been using illicit drugs. The group was reportedly told there “were no more slots left” and separated from the military. The applicant reported that after being discharged he wandered the streets and still has nightmare related to the incident. Encounter note dated 14 April 2020 showed the applicant was assigned a new Mental Health Treatment Coordinator (MHTC). The applicant’s next BH engagement with the VA was in the form of his C&P Examination on 28 July 2020, during which time he was diagnosed with PTSD secondary to MST and other conditions, as previously outlined. On 3 January 2023 a VA provider attempted to contact the applicant to conduct a PCMHI Intake assessment, however, she was unsuccessful. JLV was void of any other BH-related treatment encounters for the applicant. No civilian BH records were provided for review. f. The applicant is requesting upgrade of his under honorable conditions, general, discharge. He contends his misconduct was related to PTSD. A review of the records was void of any BH diagnosis or treatment during service. Post-service records showed the applicant 100 percent SC for PTSD secondary to MST. Except for the VA C&P Examination, there is little evidence in the record the applicant had a condition during service, however, when applying liberal consideration, the VA C&P Examination is sufficient to establish an existing condition. Therefore, as there is an association between PTSD and comorbid substance abuse, there is a nexus between the applicant’s misconduct characterized by wrongful use of cocaine and his diagnosis of PTSD. Given the nexus, the applicant’s misconduct was mitigated by PTSD. g. 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 during his time in service that mitigated his misconduct. (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant is 100 percent SC for PTSD (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 is requesting upgrade of his under honorable conditions, general, discharge. He contends his misconduct was related to PTSD. A review of the records was void of any BH diagnosis or treatment during service. Post-service records showed the applicant 100 percent SC for PTSD secondary to MST. Except for the VA C&P Examination, there is little evidence in the record the applicant had a condition during service, however, when applying liberal consideration, the VA C&P Examination is sufficient to establish an existing condition. Therefore, as there is an association between PTSD and comorbid substance abuse, there is a nexus between the applicant’s misconduct characterized by wrongful use of cocaine and his diagnosis of PTSD. Given the nexus, the applicant’s misconduct was mitigated by PTSD. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published Department of Defense guidance for liberal consideration when reviewing discharge upgrade requests. One possible outcome was to deny relief. However, the majority of Board members, concurred that there was sufficient evidence of in-service mitigating factors to overcome the misconduct. Based on a preponderance of evidence available for review, the Board determined the evidence presented sufficient to warrant recommendation for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :x : :x GRANT FULL RELIEF : :x : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20170011293, dated by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20170011293 on 18 September 2019. As a result, the Board recommends that the applicant’s NGB Form 22 be amended to show the character of service as 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. Section 1556 of Title 10, U.S. Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 2. Army Regulation 135-178 sets forth the basic authority for the separation of enlisted personnel from the U.S. Army Reserve. Chapter 7 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. A discharge under other than honorable conditions is normally considered appropriate; however, a general or an honorable discharge may be granted. a. Paragraph 2-9a provides that an honorable characterization of service is appropriate when the quality of the Soldier'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. Paragraph 2-9b provides that a general (under honorable conditions) characterization of service is warranted when significant negative aspects of the Soldier's conduct or performance of duty outweigh positive aspects of the Soldier's military record. c. Paragraph 2-9c provides that service may be characterized as UOTHC when discharge is for misconduct, fraudulent entry, unsatisfactory participation, or security reasons. 3. National Guard Regulation 600-200 provides for the management of ARNG enlisted personnel. Chapter 8 of this regulation sets the policies, standards, and procedures for the separation of enlisted Soldiers from the ARNG. It states, in pertinent part, that the separation of a Soldier from the ARNG is a function of State military authorities in accordance with State laws and regulations. Paragraph 8-26q governed separation for acts or patterns of misconduct which included the abuse of illegal drugs. 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 (DRB) and Boards for Correction of Military/Naval Records (BCM/NR) 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. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. 5. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NR 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, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220010493 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1