IN THE CASE OF: BOARD DATE: 18 July 2023 DOCKET NUMBER: AR20220011908 APPLICANT REQUESTS: Reconsideration of his previous request for upgrade of his general, under honorable conditions 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) * Department of Veterans Affairs Certificates (two) * Certificates of Completion, Training, and Participation (seven) * Department of Veterans Affairs (DVA) Letter (two) 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 ARAC96-111943 on 3 June 1998. 2. The applicant states he was post combat and not diagnosed with post-traumatic stress disorder (PTSD) until after he got out of the service. He was having memory fatigue, nightmares, anxiety, sleep disorder, and declining health issues. He asks to be considered for an upgrade because it was unjust, and he has done a lot of self-work with the DVA and on his own. 3. The applicant enlisted in the Regular Army on 4 April 1989 for four years. His military occupational specialty was 31L (Wire System Installer). 4. The applicant served in Saudi Arabia from 27 September 1990 through 8 April 1991. 5. The applicant received formal counseling between January 1990 and August 1992 for: * failure to be at his appointed place of duty at the prescribed time on numerous occasions * operating a military vehicle without the proper paperwork * failure to obey a general order * dereliction of duty * leaving a machine gun unattended, the weapon was stolen on 5 June 1990 6. The applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on/for: * 24 April 1990 - without authority, absenting himself from his unit on or about 17 April and did remain so absent until on or about 18 April 1990; his punishment consisted of extra duty and restriction * 25 March 1992 - failure to report to his appointed place of duty at the prescribed time; his punishment consisted of reduction to private first class/E-3, forfeiture of $225.00 pay, extra duty, and restriction 7. A Report of Mental Status Evaluation, dated 26 March 1992, shows the applicant had the mental capacity to understand and participate in the proceedings, was mentally responsible, and met retention requitements. 8. A Bar to Reenlistment was approved on 19 August 1992. The applicant was advised of his rights to appeal. He did not appeal. 9. The applicant’s commander notified him on 25 September 1992 that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), Chapter 14, for patterns of misconduct. The commander cited the Article 15’s, and numerous counseling statements as the basis for the recommendation. 10. The applicant consulted with legal counsel on 5 October 1992 and was advised of the basis for the contemplated action and its effects and the rights available to him. He was not entitled to consideration, or personal appearance by a board of officers. He understood that he may expect to encounter substantial prejudice in civilian life. He did not submit a statement in his behalf. 11. The applicant's immediate commander formally recommended his separation from service under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of a pattern of misconduct. His chain of command recommended approval. 12. The separation authority approved the discharge recommendation on 13 October 1992 and directed the issuance of a general, under honorable conditions discharge for misconduct. 13. The applicant was discharged on 16 November 1992. His DD Form 214 shows he was discharged in the grade of private first class/E-3 under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct-pattern of misconduct, with a general, under honorable conditions characterization of service, with Separation Code JKM, and Reentry Code 3. He completed 3 years, 7 months, and 12 days of net active service. He was awarded or authorized the: * National Defense Service Medal * Southwest Asia Service Medal with two bronze service stars * Kuwait Liberation Medal 14. By regulation, Soldiers are subject to separation under the provisions Army Regulation 635-200, Chapter 14, for commission of a serious offense. A discharge under other than honorable conditions (UOTHC) is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 15. The applicant provides: a. A DVA letter, dated 6 September 2022, which shows the applicant has been receiving behavioral healthcare from SM__, Physician Assistant-Certified (PA-C), since 15 September 2020 and has been diagnosed with PTSD. b. A DVA letter, dated 13 September 2022 that shows he has a combined service- connected disability evaluation of 70%. c. Certificates that show his post service completion training or participation for PTSD, substance abuse treatment, parenting class, anger management course and a DD Form 214. 16. On 10 December 1996, the Army Discharge Review Board (ADRB) determined that the applicant was properly and equitably discharged and denied his request for a change in the character and/or reason of his discharge. 17. On 3 June 1998, the ABCMR determined the applicant had failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice and denied his request. 18. On 10 September 2008, the applicant was notified that his application could not be processed because the ADRB was not the applicable board to review his case. 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. Background: The applicant is requesting a reconsideration of his previous request for upgrade of his general, under honorable conditions discharge to honorable. The applicant asserts PTSD as mitigating factors in his discharge. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a brief summary of information pertinent to this advisory: * The applicant enlisted in the Regular Army on 4 April 1989. * The applicant served in Saudi Arabia from 27 September 1990 through 8 April 1991. He was awarded the National Defense Service Medal, the Southwest Asia Service Medal with two bronze service stars, and the Kuwait Liberation Medal. * The applicant received formal counseling between January 1990 and August 1992 for failure to be at his appointed place of duty at the prescribed time on numerous occasions, operating a military vehicle without the proper paperwork, failure to obey a general order, dereliction of duty, leaving a machine gun unattended (the weapon was stolen on 5 June 1990). * The applicant accepted nonjudicial punishment (NJP) under Article 15 of the UCJM for: * 24 April 1990 - without authority, absenting himself from his unit on or about 17 April and did remain so absent until on or about 18 April 1990. * 25 March 1992 - failure to report to his appointed place of duty at the prescribed time. * On 25 September 1992 the applicant was notified by his commander of his intent to initiate separation under AR 635-200, chapter 14b, by reason of a pattern of misconduct. The following reasons were listed: pattern of misconduct, poor performance, and AWOL. * Applicant was discharged 16 November 1992 under AR 635-200, Ch 14-12b with an under honorable conditions (general) discharge. * Applicant was previously denied by ADRB on 10 December 1996, as it was determined he was properly and equitably discharged. He was denied by ABCMR on 3 June 1998. On 10 September 2008 he was informed his application to ADRB was not the applicable board to review his case. c. Review of Available Records Including Medical: The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149, ABCMR Record of Proceedings (ROP), Department of Veterans Affairs Certificates (two), certificates of completion/training/participation (seven), Department of Veteran Affairs letters (two), DD Form 214, as well as other documents from his service record and separation. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV) and AHLTA. Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. The applicant contends that PTSD mitigates his misconduct, and that he did not become aware of his PTSD until after he was out of the service. He noted he was having “memory, fatigue, nightmares, anxiety, sleep disorder and declining health issues.” There are no electronic health records from his time in service and the applicant did not supply any medical or mental health records to substantiate that he had a mental health diagnosis, or any mental health concerns, during that time. However, he completed a mental status exam on 26 March 1992 as part of the separation process. The results stated he met retention standards per AR 40-501 chapter 3, was mentally responsible for his behavior, and had the mental capacity to understand and participate in the proceedings. No mental health diagnosis was given. In addition, his medical exam on 24 March 1992 denied any medical or psychological concerns, with the applicant denying any issues and reporting that he was in “excellent” health. e. After the applicant discharged from the Army, he started engaging in care through the VA in 1998. Records indicate he has an extensive mental health treatment history to include therapy, psychiatric care/medication management, inpatient, and residential treatment. The applicant has numerous mental health diagnoses in his record over the last 20 years, to include cocaine abuse, alcohol abuse, alcohol dependence, depression, depressive disorder NOS, lack of housing, adjustment disorder with mixed disturbance of emotions and conduct, adjustment disorder unspecified, bipolar manic NOS, PTSD, and anxiety. His EHR indicates a compensation and pension (C&P) evaluation encounter 13 November 1998, however the actual records are not available for review. He was re-evaluated 28 July 2014 and diagnosed with PTSD, unspecified depressive disorder and alcohol use disorder, with PTSD identified as the primary concern. While his records reflect several combat related traumas, he also has a significant history of childhood trauma. Per his EHR and a letter from the VA, he is 70% service connected for PTSD. The effective date of when he became totally and permanently disabled due to his service-connected disability is 15 November 2016. The applicant also included a letter from his current provider, a Physician Assistant-Certified, that stated he has been receiving care with that provider since 15 September 2020 and has been diagnosed with PTSD. The applicant also included completion certificates from several mental health treatment programs and trainings, to include a PTSD program, a residential substance abuse program, parenting class, and anger management course. f. It is the opinion of the Agency Behavioral Health Advisor that there is minimal evidence outside of self-report to indicate the applicant had a mitigating condition during his time in service. However, the applicant has since been service connected for PTSD and this may mitigate some but not all of the misconduct he was discharged for. 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 asserts a mitigating condition. (2) Did the condition exist or experience occur during military service? Yes. The applicant contends his PTSD is secondary to combat and he has since been 70% service connected for it. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The applicant asserts mitigation due to PTSD secondary to combat. This assertion alone is worthy of consideration by the Board. There is no evidence he was ever seen for mental health, nor diagnosed with a condition while in the service. However, he has since received 70% service connection for PSTD. There is a nexus between PTSD and avoidance behaviors, to include going AWOL and failure to report. However, there is no nexus between PTSD and operating a military vehicle without the proper paperwork, failure to obey a general order, or dereliction of duty – leaving a machine gun unattended. This behavior is not part of the natural history or sequelae of PTSD. PTSD does not affect one’s ability to distinguish right from wrong and act in accordance with the right. g. It is important to note that many of his incidence of misconduct occurred prior to his deployment, with only several failure to report incidents occurring after his deployment. That said, even though it was not yet diagnosed, given his childhood history, the applicant may have already been experiencing PTSD and/or other mental health concerns. Hence, mitigation should still be considered for the applicable behaviors that occurred before his deployment as well. 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 request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was discharged from active duty due to pattern of misconduct. The Board reviewed and was persuaded by the medical advisory opinion finding insufficient evidence, beyond self-reporting, of in- service mitigating factors to overcome the misconduct. The applicant provided insufficient evidence of post-service achievements, letters of reference/support, or evidence of a persuasive nature in support of a clemency determination. 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 xx: xx: xx: 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 to amend the decision of the ABCMR set forth in Docket Number ARAC96- 111943 on 3 June 1998. 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, USC, 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. 2. Army Regulation (AR) 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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 of this regulation establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally considered appropriate. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 3. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Boards for Correction of Military/Naval Records (BCM/NRs), 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. 4. 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. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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) AR20220011908 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1