IN THE CASE OF: BOARD DATE: 31 October 2022 DOCKET NUMBER: AR20220001399 APPLICANT REQUESTS: The applicant requests: * an upgrade of his Under Other Than Honorable Conditions (UOTHC) discharge * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Discharge Orders * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), 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 would like to have his characterization of service upgraded because his undiagnosed condition of Post-Traumatic Stress Disorder (PTSD) contributed to his misconduct. He is finally addressing the shame and mental burden that he has been carrying since his separation. He was unlawfully denied Veterans' benefits that he earned. He gave the Army his all and now he needs help. 3. On 9 January 1997, the applicant enlisted in the Regular Army for a period of 4 years. He served in Bosnia from 14 August 1997 until 29 June 1998. On 26 January 2000, he reenlisted for a period of 3 years. He held the rank/grade of Specialist (SPC)/E-4 at the time of his reenlistment. 4. On 25 June 2001, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for violating Article 112a, between on or about 27 April 2001 and 18 May 2001, wrongfully using marijuana. His punishment consisted of reduction to the rank/grade of Private First Class (PFC)/E-3 (suspended), forfeiture of $300.00 pay, and extra duty for 14 days. 5. On 1 October 2001, he was promoted to the rank/grade of Sergeant (SGT)/E-5. 6. On 26 April 2002, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for violating Article 86, on or about 27 February 2002, without authority, absenting himself from his unit and remaining so absent until on or about 22 March 2002. His punishment consisted of reduction to the rank/grade of PFC/E-3 (suspended, to be automatically remitted if not vacated before 25 June 2002), forfeiture of $342.00 pay, extra duty for 14 days, and restriction for 14 days. 7. An Army Center for Substance Abuse Programs, memorandum, Subject: Army Substance Abuse Program (ASAP) Multiple Positive Report, dated 16 August 2002, shows the applicant's commander was informed that the applicant had tested positive for wrongful use of marijuana a second time from a sample collected on 29 July 2002. The purpose of this type of notification was to allow the commander to take appropriate administrative or punitive measures against identified drug abusers and to refer all Soldiers with a verified positive drug test to the installation ASAP for clinical screening, assessment and evaluation. 8. The applicant underwent a mental health evaluation on 23 September 2002. The examining Mental Health Counselor and Licensed Psychologist determined: * he revealed no significant psychiatric pathology * he had the mental capacity to understand and participate in the proceedings * he was psychologically cleared for any action deemed appropriate by command * treatment at that time was not deemed necessary 9. On 24 September 2002, the applicant underwent a pre-separation medical examination which shows, in part: a. He self-reported, in part, that he: * was currently taking Sudafed and Tylenol * had frequent trouble sleeping * had used illegal drugs (marijuana) and had received counseling for drug use * had been treated in an emergency room for throwing up blood in April 2002 * was currently in good health * had never been a patient in any type of hospital * had not consulted or been treated by clinics, physicians, healers, or other practitioners within the past 5 years for other than minor illnesses b. He was determined to be qualified for administrative separation proceedings. 10. On 25 October 2002, the applicant's immediate commander notified the applicant of his intent to initiate actions to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, by reason of misconduct – commission of a serious offense. As the reason his commander noted, the applicant's wrongful use of illegal drugs and period of unauthorized absence without leave (AWOL). He advised the applicant he was recommending that he receive a UOTHC discharge. However, the intermediate commanders and the separation authority were not bound by his recommendation. 11. On 1 November 2002, the applicant acknowledged receipt of the notification. He consulted with counsel and was advised of the basis for the contemplated actions to separate him and its effects; of the rights available to him; and the effect of any action taken by him to waive his rights. He requested representation by military counsel and/or civilian counsel and waived consideration of his case by an administrative separation board. He elected not to a submit statement in his own behalf. 12. The applicant's immediate commander formally recommended his separation prior to the expiration of his term of service under the provisions of Army Regulation 635-200, Chapter 14, by reason of commission of a serious offense. The applicant's chain of command recommended approval of the recommendation for separation. 13. On 27 November 2002, the separation authority approved the recommended discharge and directed the applicant's service be characterized as UOTHC. 14. Orders and the applicant's DD Form 214 show he was discharged accordingly on 23 December 2002. His DD Form 214 shows in: (1) block 12 (Record of Service) – He completed 5 years, 10 months, and 21 days of net active service this period. (2) block 13 (Decorations, Medals, Badges, Citations and Campaign awarded or authorized) - He was awarded or authorized the Armed Forces Service Medal, Army Achievement Medal (3rd Award), Army Good Conduct Medal, National Defense Service Medal, Noncommissioned Officer's Professional Development Ribbon, Army Service Ribbon, Overseas Service Ribbon, Driver and Mechanic Badge with Driver-Wheeled Vehicle Bar. (3) block 18 (Remarks) – He had continuous honorable active service from 9 January 1997 until 25 January 2000. He served in Bosnia from 14 August 1997 until 29 June 1998. He completed his first term of service. (4) block 24 (Character of Service) - His characterization of service was UOTHC. (5) block 25 (Separation Authority) - The authority for his separation was Army Regulation 635-200, Paragraph 14-12c. (6) block 26 (Separation Code) - His Separation Program Designator Code was "JKQ." (7) block 27 (Reentry Code) - His Reentry Eligibility (RE) Code was "3." (8) block 28 (Narrative Reason for Separation) - The narrative reason for his separation was "Misconduct." (9) block 29 (Dates of Time Lost During This Period) – He had time lost from 27 February 2002 until 22 March 2002. 15. The applicant’s record is void of and he has not provided any evidence which shows during his period of service he was diagnosed with PTSD or any other medical or behavioral health condition. 16. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief BCM/NRs 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 17. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 18. By regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant and his counsel is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 19. MEDICAL REVIEW: The applicant is applying to the ABCMR requesting an upgrade of his under other than honorable conditions (UOTHC) discharge. He contends his misconduct was related to PTSD. a. 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 January 1997; 2) He received NJP under provisions of the UCMJ, Article 15 on two occasions for marijuana use; 3) He was separated on 23 December 2022 under provisions of AR 635 – 200, Chapter 14-12c, serious misconduct. b. Military medical records reviewed included 1) DD Form 2808 (Report of Medical Examination) dated 24 September 2002, showing the applicant was medically qualified for separation; 2) Memorandum of Mental Health Evaluation dated 23 September 2002, showing the applicant psychiatrically cleared for any administrative separation deemed appropriate by command. A review of the VA electronic medical record (JLV) shows the applicant is 100 percent service-connected for PTSD; effective date 24 August 2020. Records appear to indicate the applicant first engaged BH services at the Ann Arbor, MI VA on 21 August 2020 with issue of depression, anxiety, and substance use. Symptom onset reportedly occurred while he was stationed in Bosnia and never abated. He was diagnosed with Major Depressive Disorder recurrent, Anxiety Disorder unspecified, Alcohol Use Disorder, and Cannabis Use Disorder. On 11 May 2021 His diagnoses were amended to include Unspecified Trauma Disorder, after he disclosed traumatic experiences associated with his deployment to Bosnia. On 29 June 2021 the applicant was diagnosed with PTSD associated with his deployment to Bosnia and rated 100 percent service-connected. The applicant continues to receive outpatient therapy and medication management for his BH disorders. c. Based on the available information, it is the opinion of the Agency BH Advisor that the applicant had a condition that mitigated his misconduct. The applicant has a 100 percent service-connected PTSD diagnosis associated with his deployment to Bosnia. d. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? (a) Yes. The applicant has a 100 percent service-connected PTSD diagnosis associated with his deployment to Bosnia. (2) Did the condition exist or experience occur during military service? (a) Yes. The diagnosis is associated with traumatic experiences encountered in Bosnia (3) Does the condition or experience actually excuse or mitigate the discharge? (a) Yes. The applicant reported a history of substance abuse, to include alcohol and marijuana, to cope with his PTSD symptoms. There is a clear nexus between PTSD and the use of substances to address associated symptoms. BOARD DISCUSSION: 1. The applicant's request for a personal appearance was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance before the Board is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, the medical advisory opinion and published DoD guidance for consideration of discharge upgrade requests. The Board considered the frequency and nature of the misconduct, the reason for separation and whether to apply clemency. One possible outcome was to grant relief. However, the majority of Board members notwithstanding the medical advisory opinion found insufficient evidence of in-service mitigating factors to override the pattern of misconduct. The applicant provided no evidence of post- service achievements or letters of reference to weigh in support of a clemency determination. Based on the preponderance of evidence available for review, the Board determined that the character of service the applicant received upon separation were not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : :X : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :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, USC, 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, USC, section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency (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. prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that 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. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. 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. 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. Paragraph 3-7b states 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 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline). 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 appropriate for a Soldier discharged under this chapter; however, the separation authority may direct a general discharge if merited by the Soldier’s overall record. 5. Army Regulation 635-5-1 provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the separation codes to be entered on the DD Form 214. It states that the separation code "JKQ" is an appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 14, Paragraph 14-12c, by reason of Misconduct. Additionally, the SPD/RE Code Cross Reference Table established that RE code "3" was the proper reentry code to assign to Soldiers separated under this authority and for this reason. 6. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service BCM/NRs 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. 7. 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 DRBs and BCM/NRs 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. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to 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. 8. 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, BCM/NRs 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) AR20220001399 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1