IN THE CASE OF: BOARD DATE: 7 June 2023 DOCKET NUMBER: AR20220010842 APPLICANT REQUESTS: Upgrade of his under honorable conditions (general) discharge to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 20 January 1993 * Veterans Affairs (VA) Benefits and Summary Letter, dated 15 July 2022 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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, in effect, states that a traumatic event while he was in service, contributed to his discharge for misconduct. 3. On his DD Form 149, the applicant notes that post-traumatic stress disorder (PTSD) and a Traumatic Brain Injury are related to his request, as contributing and mitigating factors in the circumstances that resulted in his separation. 4. On 4 April 1989, the applicant enlisted in the Regular Army for 4 years. Upon completion of training, he was awarded military occupational specialty 12B (Combat Engineer). 5. The applicant served in Southwest Asia from 19 October 1990 to 12 April 1991. 6. The applicant was formally counseled on or about 7 August 1991, for ammunition being found in his personal property. 7. On 12 May 1992, the applicant accepted non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from on or about 30 December 1991, to on or about 21 January 1992. His punishment included reduction to E-1, forfeiture of $392 pay per month for two months, and 45 days of extra duty. 8. The applicant was formally counseled on or about 11 September 1992, for disobeying an order. 9. On 11 September 1992, the applicant accepted NJP under Article 15 of the UCMJ, for violating a lawful general regulation by possessing bullets in his wall locker, on or about 28 July 1992. His punishment included forfeiture of $392 pay per month for two months, and 45 days extra duty and restriction. 10. The applicant was formally counseled on or about 23 November 1992, for failing to be at his appointed place of duty. 11. On 2 October 1992, the applicant underwent a mental status evaluation. He was psychiatrically cleared to participate in any administrative action deemed appropriate by the command. 12. The applicant's immediate commander notified him on 2 December 1992, that he was initiating actions to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, Paragraph 12-12b, for pattern of misconduct. He cited the applicant’s Article 15’s for going AWOL and for his failure to obey a lawful regulation. 13. The applicant acknowledged that he had been advised by counsel for the contemplated separation action, the possible effects of the discharge, and the 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. He declined to submit a statement in his own behalf. 14. The applicant's immediate commander formally recommended his separation under the provisions of Army Regulation 635-200, Paragraph 14-12b, for misconduct. 15. On 15 December 1992, the separation authority approved the recommended discharge and the issuance of a under honorable conditions (general) discharge certificate. 16. By legal review on 21 December 1992, the applicant’s Chapter 14, separation action was found to be legally sufficient for further processing. 17. The applicant was discharged on 20 January 1993. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, for pattern of misconduct. His service was characterized as under honorable conditions (general). He completed 3 years, 8 months, and 26 days of net active service this period with 22 days of lost time. He was awarded or authorized the: * Army Achievement Medal * Good Conduct Medal * National Defense Service Medal * Army Service Ribbon * Air Assault Badge * Driver and Mechanic Badge (Driver – Wheeled) * Expert Badge Grenade * Sharpshooter Badge Rifle * Southwest Asia Service Medal with 3 Bronze Stars * Kuwait Liberation Medal 18. The applicant provides a VA Benefits and Summary Letter, that shows he was granted a service-connected disability rating for PTSD and migraines. 19. In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 20. MEDICAL REVIEW a. The applicant is applying to the ABCMR requesting an upgrade of his under honorable conditions (general) discharge. He contends he had PTSD and a traumatic brain injury (TBI) which mitigates his misconduct. 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 in the Regular Army on 4 April 1989; 2) The applicant served in Southwest Asia from 19 October 1990-12 April 1991; 3) On 12 May 1992, the applicant accepted non-judicial punishment (NJP) for being AWOL from 30 December 1991-21 January 1992; 4) On 11 September 1992, the applicant accepted NJP for not following orders by possessing bullets in his wall locker; 5) The applicant was discharged on 20 January 1993, Chapter 14-12b-for pattern of misconduct. His service was characterized as 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 VA’s Joint Legacy Viewer (JLV) was also examined. d. The applicant asserts he was experiencing PTSD and a TBI which mitigate his misconduct. There is insufficient evidence the applicant reported any symptoms of a head injury or a mental health condition while he was on active service. The applicant was cleared from a psychiatric perspective for administrative action on 2 October 1992 after completing a Mental Status Exam, which was a part of his separation proceedings. A review of JLV provided evidence the applicant has been diagnosed and treated for PTSD and symptoms associated with a TBI (i.e., migraines), which were related to his experiences during his deployment. He has also been provided 80% service-connected disability for PTSD and migraines on 17 February 2022. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence to support the applicant experienced a TBI and PTSD that mitigated his misconduct. Kurta Questions A. Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he was experiencing symptoms of a TBI and PTSD that contributed to his misconduct. He has been diagnosed with these conditions since leaving active service B. Did the condition exist or experience occur during military service? Yes, the applicant reports his symptoms of PTSD and TBI occurred while on active service. Also, the applicant has been diagnosed with service-connected PTSD and symptoms associated with a TBI (i.e., migraines). C. Does the condition or experience actually excuse or mitigate the discharge? Yes, there is sufficient evidence that the applicant was experiencing a mental health condition while on active service. He has diagnosed service-connected PTSD and migraines. The applicant had a history of going AWOL and not following orders during his military service after returning from his deployment. PTSD and TBI can be associated with avoidant behavior such as going AWOL and erratic behavior such as not following orders. These types of misconduct are also often a natural sequalae to PTSD and TBI. ? BOARD DISCUSSION: 1. 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. Upon review of the applicant’s petition, available military records and medical review, the Board determined that they did not agree with the advising official opinion finding there is sufficient evidence to support the applicant experienced a TBI and PTSD that mitigated his misconduct. The Board found in that the applicant’s basis for separation was only partially mitigated. 2. The applicant was discharged for misconduct and provided an under honorable conditions(general) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. Furthermore, the Board noted PTSD does not hinder one’s ability to distinguish between right and wrong. Based upon a preponderance of the evidence, and notwithstanding the recommendation of the advisory official, the Board determined the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, U.S. Code, Section 1556, 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. 3. 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. 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. c. Chapter 14, paragraph 14-12b provides for the separation of Soldiers when they have a pattern of misconduct involving acts of discreditable involvement with civil or military authorities and conduct which is prejudicial to good order and discipline. The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of Chapter 14. (1) The separation authority may direct a general discharge if such is merited by the Soldier’s overall record. (2) Characterization of service as honorable is not authorized unless the Soldier’s record is otherwise so meritorious that any other characterization clearly would be inappropriate. A characterization of honorable may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is delegated. 4. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Navy Records (BCM/NR), on 3 September 2014, 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. 5. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, traumatic brain injury (TBI), 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 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. 6. 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, 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) AR20220010842 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1