IN THE CASE OF: BOARD DATE: 21 June 2023 DOCKET NUMBER: AR20220011002 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) * Department of Veterans Affairs Letter 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 states, in effect, he was suffering from post-traumatic stress disorder (PTSD). He was not diagnosed until later. 3. The applicant enlisted in the Regular Army on 9 March 2004, for 3 years and 16 weeks. His military occupational specialty was 13B (Cannon Crewmember). 4. The applicant served in Iraq from 19 January 2005 through 2 January 2006. 5. The available record is void of a separation packet containing the specific facts and circumstances surrounding the applicant’s discharge processing. However, Orders 304- 2213, issued on 31 October 2006, reassigned the applicant to the transition point for separation processing. 6. The applicant was discharged on 6 November 2006. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharge under the provisions of Army Regulation 635-200 (Personnel Separations-Active-Duty Administrative Separations), Chapter 10, in lieu of trial by court-martial, with Separation Code KFS (for the good of the service - in lieu of trial by court martial). He was issued reentry eligibility (RE) code "4." His characterization of service was under other than honorable conditions. He completed 2 years, 8 months, and 28 days of net active service. 7. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the service. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 8. On 13 May 2010, the Army Discharge Review Board (ADRB) determined the applicant was properly and equitably discharged and the request for a change in the character and/or reason of his discharge was denied. However, in the processing of his case the Board determined that Block 24 (Character of Service) on his DD Form 214 was erroneous and corrected it to reflect "Under Honorable Conditions (General)" and issued a new DD Form 214 on 9 June 2010. 9. The applicant petitioned the ABCMR for correction of his discharge characterization, overseas service, and earned awards. On 21 February 2012, the Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommended that all Department of the Army records of the applicant be corrected by amending his DD Form 214. 10. On 4 April 2012, the ABCMR informed the applicant his records had been corrected and issued a DD Form 215 (Correction to DD Form 214) that shows in: * Block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) ADD: Army Commendation Medal, Iraq Campaign Medal with two bronze service stars, Global War on Terrorism Service Medal * Block 18 (Remarks) ADD: Service in Iraq from 20050119-20060102 11. The applicant provides an Army Review Boards Agency email requesting medical documents that support his mental health issues (PTSD). On 31 January 2023, the applicant responded by emailing a Department of Veterans Affairs letter that shows service-connected disability rating of 70 percent (%) for PTSD and 20% for left knee meniscal tear. 12. 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. 13. Based on the applicant's PTSD diagnosis the Army Review Boards Agency (ARBA) medical staff provided a medical review for the Board members. See the "MEDICAL REVIEW" section below. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 14. MEDICAL REVIEW: a. The applicant requests upgrade of his under honorable conditions, general, discharge 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 Regular Army on 9 March 2004 and served in Iraq from 19 January 2005 through 2 January 2006; 2) The available record is void of a separation packet containing the specific facts and circumstances surrounding the applicant’s discharge processing. However, Orders 304-2213, issued on 31 October 2006, reassigned the applicant to the transition point for separation processing; 3) The applicant was discharged on 6 November 2006. His DD Form 214, shows he was discharged under provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. c. The military electronic medical record, AHLTA, VA electronic medical record, JLV, ROP, and casefiles were reviewed. A review of AHLTA showed the applicant was seen for a FAP interview on 17 May 2005, at Fort Benning GA after reportedly engaging in simple assault against this wife. The applicant denied ever “putting his hands” on his wife or putting his hands through a glass door. He reported he may have brushed against her while getting off the couch and that his hand shattered the door glass while attempting to stop his wife from slamming the door against his leg. The provider noted the applicant was currently on R&R from Iraq. The diagnosis of record was Marital Conflict. The applicant was seen at FAP for a follow-up on 24 May 2005 and reported things were well between himself and his spouse. Records suggest the applicant next BH-related engagement occurred on 15 May 2006 where he presented as a self-referral after being urged by his 1SG. The applicant reported his 1SG mistakenly believed the applicant endorsed suicidal ideation (SI) related to an automobile accident. The applicant stated he was expressing that he could have killed himself drinking and driving, not that he tried to kill himself drinking and driving. The applicant also endorsed marital issues and was referred to FAP on the same day. During the FAP visit he reported being the victim of domestic violence perpetrated by his spouse. He stated not reporting the incidents in the past because he did not think people would believe him. d. Records showed the applicant was seen at the Deployment Cycle Center on 13 June 2006 with complaints of nightmare, panic attack, and sleep problems. The applicant endorsed losing several friends in Iraq and related he avoids sleeping at night because of nightmare related to deployment. He also reported exaggerated startle response to certain noises. The provider also noted the applicant was currently under investigation for assault of his spouse. He was diagnosed with Adjustment Disorder with Anxious Mood and scheduled for follow-up. The applicant was seen for follow-up on 28 July 2006. He reported being arrested by police in March for having assaulted his wife; denied having assaulted her. He also reported command threatening court-martial proceeding but was unsure of the offense. He suspected it might be related to an accident he was involved in whereby he left the scene and was later charged with DUI. AHLTA was void of any additional BH-related encounters for the applicant. e. A review of JLV showed the applicant 70 percent SC for PTSD. VA C&P Examination, dated, 19 September 2012, showed examiner diagnosed the applicant with PTSD related to exposure to multiple IEDs and witnessing the death of two Soldiers during convoy operations in Iraq. Records suggest the applicant first engaged the VA for treatment in January 2012 with complaints of nightmares, insomnia, hyper- arousal, depressed mood, anhedonia, isolation, distrusting others, irritability, flashbacks triggered by smell, and daily headaches. He reported symptoms secondary to deployment to Iraq. He was diagnosed with PTSD and Depressive Disorder and scheduled for outpatient treatment via therapy and medication management. Encounter note dated 27 February 2012 showed he was prescribed Sertraline for treatment of symptoms. Records showed the applicant engaged in treatment, intermittently, between 2012 and 2016, and then again from 2021 to present day. His problem list reflects diagnosis of PTSD, MDD, and Alcohol Used Disorder. f. The applicant is seeking upgrade of his under honorable conditions, general, discharge to honorable. He contends his misconduct was related to PTSD. A review of the records showed the applicant diagnosed with Adjustment Disorder with Anxiety, and Marital Conflict, during service. Post-service records showed the applicant 70 percent SC for PTSD. In absence of the applicant’s separation packet this advisor cannot render a fully informed opine, so what follows is based on the advisor inferring from the records the applicant’s misconduct was characterized by assault of his spouse and DUI. Misconduct characterized by assault of his spouse would not be mitigated as assault is not natural sequela of PTSD. Misconduct characterized by DUI would be mitigated given there is a nexus between PTSD and comorbid substance use to self-medicated symptoms, and the DUI was secondary to alcohol misuse. 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, however, in absence of the applicant’s separation packet, it is unclear if the diagnosis mitigated his misconduct. Kurta Questions: 1. Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant is 70 percent SC for PTSD 2. Did the condition exist, or experience occur during military service? Yes. The diagnosis is related to his tour in Iraq. 3. Does the condition or experience actually excuse or mitigate the discharge? Unclear. The applicant is seeking upgrade of his under honorable conditions, general, discharge to honorable. He contends his misconduct was related to PTSD. A review of the records showed the applicant diagnosed with Adjustment Disorder with Anxiety, and Marital Conflict, during service. Post- service records showed the applicant 70 percent SC for PTSD. In absence of the applicant’s separation packet this advisor cannot render a fully informed opine, so what follows is based on the advisor inferring from the records the applicant’s misconduct was characterized by assault of his spouse and DUI. Misconduct characterized by assault of his spouse would not be mitigated as assault is not natural sequela of PTSD. Misconduct characterized by DUI would be mitigated given there is a nexus between PTSD and comorbid substance use to self-medicated symptoms, and the DUI was secondary to alcohol misuse. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, 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 considered the advising official findings of sufficient evidence in the records that the applicant had a condition or experience during his time in service, however, in absence of the applicant’s separation packet, it is unclear if the diagnosis mitigated his misconduct. The Board noted the advisory opine stated misconduct characterized by DUI would be mitigated given there is a nexus between PTSD and comorbid substance use to self-medicated symptoms, and the DUI was secondary to alcohol misuse. 2. However, based on the preponderance of evidence, the Board determined the applicant was under investigation for assault of his spouse and was charged with a DUI, putting the safety of others at risk, during his period of enlistment. The Board found the applicant showed no remorse for his misconduct and understood the difference between right and wrong. The Board determined due to the absence of his separation packet; the Board found there is insufficient evidence to determine an error. Additionally, the Board noted, the applicant provided insufficient evidence of post- service achievements or character letters of support that could attest to his honorable conduct that might have mitigated the discharge characterization. The applicant was discharged and provided an under honorable conditions (General) characterization of service. Furthermore, the Board, under liberal consideration found the applicant’s misconduct of assault on his spouse and his reckless actions of a DUI did not out weigh the advising opine that his DUI would be mitigated given there is a nexus between PTSD. Therefore, the Board denied relief. 3. The Board agreed the VA applies its own polices and regulations to make service connection and rating determinations. It is not bound by determinations made by the Army. With that, unlike the VA, the Army’s determination of fitness and its mandatory application of VA ratings is a snapshot in time whereas the VA can make service connection and rating determinations throughout the veteran’s life. The VA provides post-service support and benefits for service-connected medical conditions. The VA operates under different laws and regulations than the Department of Defense (DOD). In essence, the VA will compensate for all service-connected disabilities. 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 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. Title 10, U.S. Code, Section 1556, provides the Secretary of the Army shall ensure that an applicant seeking corrective action by 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. 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 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate. 4. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Boards for Correction of Military/Naval 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 under other than honorable conditions (UOTHC) and who have been diagnosed with post-traumatic stress disorder (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, 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 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. 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. 6. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service DRBs and Service BCM/NRs on 25 July 2018, 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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) AR20220011002 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1