IN THE CASE OF: BOARD DATE: 13 September 2023 DOCKET NUMBER: AR20220011877 APPLICANT REQUESTS: Upgrade of his under honorable conditions (general) discharge. Additionally, he requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the U.S.) 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 he is requesting a review of his discharge characterization based on mental conditions that caused post-traumatic stress disorder (PTSD), due to a lack of support from his chain of command. His fiancée had a miscarriage, and his chain of command did not offer any support, nor would they allow him to go home to grieve or bury his child. This sent him into a deep depression and therefore caused him to seek leisure drugs to cope. 3. Having had previous service in the Army National Guard, the applicant enlisted in the Regular Army on 19 November 1998, for 3 years. The highest rank/grade he attained was Specialist/E-4. 4. The applicant received formal counseling on the following dates/for: * 20 February 2001, notification of his bar to reenlistment, duty performance and failing to pay his debts * 21 February 2001, failing to pay his debts and not performing to standards * 6 March 2001, flagging action and denial of consideration for promotion 5. The applicant tested positive for marijuana during a urinalysis conducted on 22 March 2001. 6. On 1 May 2001, the applicant accepted non-judicial punishment under Article 15 of the Uniform Code of Military Justice, for wrongful use of marijuana between on or about 21 February 2001 and 22 March 2001. His punishment included reduction to the grade of E-2, forfeiture of $521.00 of pay for two months, and 45 days extra duty. 7. The applicant's immediate commander notified the applicant on 31 July 2001, that he was initiating actions to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for commission of a serious offense. His commander noted his wrongful use of marijuana. 8. On 1 August 2001, the applicant consulted with counsel and was advised of the basis 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 and he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result. He declined to submit a statement in his own behalf. 9. The applicant's immediate commander formally recommended his separation under the provisions of Army Regulation 635-200, Chapter 14, for commission of a serious offense. 10. Consistent with the chain of command’s recommendations, the separation authority approved the recommended separation action on 13 August 2001, with issuance of an under honorable conditions (general) characterization of service. 11. The applicant was discharged on 23 August 2001. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2), for misconduct. His service was characterized as under honorable conditions (general). He completed 2 years, 9 months, and 5 days of net active service this period. 12. The applicant petitioned the Army Discharge Review Board requesting upgrade of his under honorable conditions (general) discharge. On 27 July 2012, the Board voted to deny relief and determined that his discharge was both proper and equitable. 13. On 28 April 2023, the ABCMR staff requested that the applicant provide medical documents to support his mental health issues. He was advised that he could contact the doctor that diagnosed him or his VA regional office for assistance. He did not respond. 14. 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. 15. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under honorable conditions (general) discharge. He contends he experienced mental health conditions, including PTSD that mitigated 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 had previous service in the Army National Guard and then enlisted in the Regular Army on 19 November 1998; 2) The applicant received formal counseling on 20 February 2001 to notify him of his bar to reenlistment, poor duty performance and failing to pay his debts; 3) On 1 May 2001, the applicant accepted non-judicial punishment (NJP) for wrongful use of marijuana on 21 February 2001 and 22 March 2001; 4) The applicant was discharged on 23 August 2001, Chapter 14-12c (2), for misconduct. His character of service was 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 reviewed. d. The applicant asserts he was experiencing mental health conditions including PTSD as a result of a “lack of support from my/his chain of command and family issues combined.” He also stated his fiancée experienced a miscarriage and his chain of command did not offer support. There is insufficient evidence the applicant reported symptoms of a mental health conditions while on active service. A review of JLV provided evidence the applicant has been seen for mental health conditions related to his experiences while incarcerated after his discharge. There was insufficient evidence the applicant has ever been diagnosed with PTSD, and he receives no service- connected disability. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he was experiencing mental health conditions, including PTSD which mitigate his misconduct. (2) Did the condition exist or experience occur during military service? Yes, the applicant contends he was experiencing mental health conditions, including PTSD while on active service, which mitigate his misconduct. (3) Does the condition or experience actually excuse or mitigate the discharge? No, there is insufficient evidence beyond self-report the applicant was experiencing a mental health condition including PTSD while on active service. The applicant was engaged in repeated misconduct to include substance abuse and not performing to standard, which can be a sequalae to some mental health conditions including PTSD, but this is not sufficient to establish a history of a condition during active service. In addition, there is no nexus between failure to pay debts and mental health conditions including PTSD. However, the applicant asserts he was experiencing mental health conditions, including PTSD that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration. 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 concurred with the advising official finding insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. Additionally, the Board noted, the opine found insufficient evidence the applicant reported symptoms of a mental health conditions while on active service. There was insufficient evidence the applicant has ever been diagnosed with PTSD, and he receives no service-connected disability. 2. The Board agreed there is no nexus between failure to pay debts and mental health conditions including PTSD. The Board found insufficient evidence of in-service mitigating factors for the serious misconduct to weigh a clemency determination. The applicant provided no evidence of post-service achievements or letters of support that could attest to his honorable conduct for the Board consideration that might have mitigated the discharge characterization. The applicate was discharged for misconduct and was provided an under honorable conditions (General) characterization of service. The Board determined 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. Therefore, the Board denied relief. 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. It states that action will be initiated to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or unlikely to succeed. Paragraph 14-12c (Commission of a Serious Offense) applied to commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense. First time offenders below the grade of sergeant, and with less than 3 years of total military service, may be processed for separation as appropriate. 5. 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 under other than honorable conditions 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. 6. 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, 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. 7. 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) AR20220011877 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1