IN THE CASE OF: BOARD DATE: 17 August 2022 DOCKET NUMBER: AR20220001596 APPLICANT’S REQUEST: * upgrade of his under other than honorable conditions discharge to honorable * change separation code * change reentry code * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 2 x Self-authored Letter * 3 x Letter from National Personnel Records Center (NPRC) * Enlistment * Nonjudicial Punishment (NJP) * Report of Medical History * 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 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. 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. 3. The applicant indicates, on his application, that he suffers from Post-Traumatic Stress Disorder (PTSD). The applicant states on his application and in his first self- authored letter, in effect: a. He deployed to Southwest Asia in August 1990. He served in both Saudi Arabia and Kuwait. b. He was an artillery combat crew member and served from 12 December 1990 to 24 March 1991 in the theater of operations. As a result of the deployment, he suffered from undiagnosed combat related PTSD, which he has not received adequate treatment or counseling. c. After a short tour in Germany, he was returned stateside as his overseas unit was deactivated. He was then assigned to a unit in Fort Lewis, Washington, where he received four NJPs for being late to duty. d. In July 1995, he was falsely implication in a situation where another Soldier shot at a civilian as well as military personnel on base. He was not charged with this incident; however, as a result he was ordered to submit to a urinalysis, which he was told tested positive for the use of marijuana. He never saw the actual results of the test and to his knowledge it was not recorded in his service medical records. e. Shortly afterwards, he was offered NJP, which the Judge Advocate General (JAG) officers recommended he accept. At some point in time this action was elevated from company grade NJP to field grade NJP. As a result, after receiving the NJP he was processed for an under other than honorable conditions discharge, which occurred on 24 January 1996. f. In 2005, 2010, and 2020 he contacted the NPRC in order to obtain copies of his service personnel records as well as medical records and disciplinary actions. He enclosed NPRC's replies, which indicate no records existed at their facility. He asked how he could apply for a correction of military records if the evidence needed did not exist as documented by the archive technicians. g. With his application, he included the required documents for the Board to consider an upgrade of his DD Form 214. He attempted to obtain supporting documents to justify his claim; however the three requests to NPRC over the last 16 years yielded negative results. In question are his service records, complete medical records, and all documents relating to disciplinary actions. h. It was blatantly obvious to the most casual observer that these records have either been lost or did not exist. He asked the Board to consider the limited documents as evidence for a positive outcome. He thanks the Board for their consideration of this matter. 4. The applicant provides the following documents, not contained in his service record, for the Board's consideration: a. A letter from the NPRC, dated 5 December 2005, which states in effect they were pleased to respond to the applicant' request by providing documents to the applicant. It does not indicate which documents were provided to the applicant. b. A letter from the NPRC, dated 19 April 2010, which states in effect, they enclosed the personnel records requested by the applicant but does not indicate what those records were. The medical records the applicant requested were not at the NPRC. c. A letter from the NPRC, dated 13 March 2020, which states in effect, they enclosed the requested documents to the applicant; however, it does not indicate which documents were requested. d. A self-authored letter, dated 23 March 2021, which states in effect: (1) He was in the process of requesting to upgrade his under other than honorable conditions discharge, which required the submission of a DD Form 149 and supporting evidence. (2) Over a period of the last 10 years, he has attempted to request and access his military records without success. (3) He has been incarcerated since 2002 and does not have internet access and limited mail services. He contacted NPRC as well as the Department of Veteran Affairs (VA) and never received a reply. Copies of his official military personnel file (OMPF), medical records, and all records of disciplinary actions are necessary in order to plead his case before the ABCMR. 5. On 17 February 1989, the applicant enlisted in the US Army Reserve (USAR) delayed entry program for a period of 8 years. On 7 March 1989, he was discharged from the USAR DEP and entered active duty for a period of 3 years and 15 weeks. His DA Form 2-1 (Personnel Qualification Record) shows he entered one station unit training on 10 March 1989. 6. On 1 September 1989, the applicant was promoted to the rank of Private/E-2 (PV2). There is no record of his promotion to Private First Class/E-3 (PFC); however, on 1 August 1991, he was promoted to the rank of Specialist/E-4 (SPC). 7. On 2 December 1991, the applicant completed an immediate reenlistment in the Army for a period of 3 years. On 20 December 1991, the applicant completed an Oath of Extension of Enlistment extending his enlistment for 18 months. 8. The applicant completed Headstart and Equal Opportunity training from 3 May 1993 to 14 May 1993. 9. A Specimen Custody Document - Drug Testing document shows the applicant tested positive for the use of marijuana on 21 July 1995. 10. On 24 July 1995, a Bar to Reenlistment Certificate was completed on the applicant and shows: a. He received NJP on 30 June 1996 for failing to go to his appointed place of duty. He was reduced to the rank of PFC, suspended; forfeiture of $265, and extra duty and restriction for a period of 14 days. b. He received counseling forms: * 26 June 1995, for failure to report to duty * 16 June 1995, for failure to report to duty and lack of discipline * 8 May 1995, for failure to report to duty * 14 February 1995, for failure to report to duty * 16 December 1994 for failure to report to duty c. The complete Bar to Reenlistment Certificate was not available for the Board's review, and we are unable to determine that the applicant received a copy, rebutted the Bar to Reenlistment, or if the Bar to Reenlistment was approved. 11. On 1 August 1995, the applicant was reduced to the rank of PFC. 12. On 15 August 1995, the applicant completed a Sworn statement, which states in effect: a. On or about 15 August 1995, he appeared before the unit commander in regards to his urine sample, which was returned as positive. b. Over the previous three years, he had smoked some controlled substance, while he was on leave before going to Germany. c. Within the previous month, he was around a group of people smoking controlled substances. He had never purchased any type of controlled substance from anyone military or civilian. d. On or about 15 July 1995, in the city of Tacoma, Washington, he was at the house where a group of people were smoking a large amount of controlled substances. He was not aware of anyone within his unit, battalion, or brigade that used controlled substances. e. No matter what he said, he would still be going to feel that he would be misjudged by the circumstances against him. f. He smoked marijuana on or about 15 July 1994. He was aware that it was an illegal act. He did not purchase the marijuana that he used. He was not under the influence of marijuana when he fell from a second story of a building or when he fell from a window. He had not used any other illegal substance, while he was in the military. 13. On 6 September 1995, the applicant accepted NJP for failing to go to his appointed place of duty and for the wrongful use of marijuana. His punishment included reduction to the rank of PVT, forfeiture of $250 per month for two months, and restriction for 45 days. He did not appeal his punishment. 14. On 19 September 1995, the applicant was reduced to the rank of PVT. 15. On 25 September 1995, the applicant underwent a Report of Mental Status Evaluation, which shows the applicant was psychiatrically cleared for any administrative action deemed appropriate by the command. 16. On 5 October 1995, the applicant underwent a Report of Medical Examination, which shows he was qualified for separation from the Army. His Report of Medical History shows he was in fair health. He indicated he had a head injury and had been treated for a mental condition. The doctor stated he had a history of a head injury at the age of 8 years old but did not comment on his mental health condition. 17. On 8 November 1995, the applicant received a developmental counseling form, which was a three-month review of his approved Bar to Reenlistment Certificate. It was determined the bar would remain in effect and he would be initiated for separation from the Army. 18. On 24 November 1995, the applicant's commander advised him he was initiating separation action against the applicant, under paragraph 14-12c, commission of a serious offense (misconduct), Army Regulation 635-200 (Enlisted Separation) for the applicant's wrongful use of marijuana and failing to go to his appointed place of duty for which he received NJP. The commander informed the applicant he was recommending the applicant receive an under other than honorable conditions discharge, but the final decision rested with the separation authority. 19. On 4 December 1995, after consulting with counsel, the applicant acknowledged counsel had advised him of the basis for the separation action, the rights available to him, and the effect of waiving those rights. The applicant indicated he understood his rights, declined consideration of his case by an administrative separation board if his service was characterized no less favorable than under honorable conditions(general), and elected to submit a statement in his own behalf; however, the statement was not available for the Board's review. 20. The applicant's chain of command recommended discharge of the Applicant with an under other than honorable conditions discharge. 21. On 15 December 1995, the applicant completed a memorandum subject: Request for Waiver, which states, in effect: a. He had been advised by his defense counsel of the basis for the action to separate him from the Army for commission of a serious offense, the rights available to him, and the effect of any action taken by him in waiving his rights. He understood he was entitled to have his case considered by an administrative separation board because he was being considered for a discharge under other than honorable conditions. b. Prior to completing the memorandum, he had time to consult with counsel who had advised him of the effects of submitted a waiver of his right to an administrative separation board. The applicant voluntarily waived consideration of his case by an administrative separation board. The waiver supplemented his election of rights, dated 4 December 1995. c. Statements in his own behalf were not submitted with the memorandum. 22. On 21 December 1995, the appropriate separation authority excepted the applicant's unconditional waiver and directed separation of the applicant with an under other than honorable conditions discharge. 23. On 24 January 1996, the applicant was discharged accordingly. The applicant's DD Form 214 shows he completed 6 years, 10 months, and 18 days of active duty service. He had continuous honorable active serve from 7 March 1989 to 1 December 1991. He had immediate reenlistments from 7 March 1989 to 1 December 1991. His extension of service was at the request of the convenience of the government. He was awarded or authorized the: * Army Service Ribbon * National Defense Service Medal * Southwest Asia Service Medal * Kuwait Liberation Medal * Army Good Conduct Medal * Army Achievement Medal * Overseas Service Ribbon * Marksman Marksmanship Badge Rifle M-16 24. 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. 25. The applicant indicates on his application that he suffers from PTSD. He is asking for an upgrade of his discharge to an honorable discharge and to change his separation code and reentry code to reflect an honorable discharge. He states he suffered from undiagnosed PTSD at the time of service. He has been incarcerated and has not been able to get all of the supporting documents required to show he has PTSD. He also states all of his disciplinary actions are not contained in his OMPF. a. The applicant's service records show he underwent a Mental Status Evaluation prior to being discharged and he was psychiatrically cleared for separation. b. His records also show that he accepted NJP on at least two occasions and tested positive for the wrongful use of marijuana. c. Army Regulation 27-10 (Legal Services), in effect at the time, states for Soldiers SPC or Corporal or below, the original NJP will be filed locally in unit NJP files. Such locally filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the Soldier's transfer to another general courts-martial convening authority; whichever occurs first. d. d. Commanders could separate Soldiers, per paragraph 14-12c, when those Soldiers had committed a serious military or civilian offense, and the UCMJ authorized a punitive (i.e. bad conduct or dishonorable) discharge for the offense. The regulation considered the abuse of illegal drugs as serious misconduct e. The Manual for Courts-Martial, Table of Maximum Punishments showed Article 112a (Wrongful Use, Possession, etc. of Controlled Substances) included a punitive discharge among its maximum punishments. f. Army Regulation 15-185 (ABCMR) states an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. g. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) is the source document for entries in item 26 of the DD Form 214. It states, Soldiers separated under the provisions of Army Regulation 635-200, Chapter 14 (Misconduct - Use of Illegal Drugs) were required to be assigned the Separation Code of "JKK," and the associated narrative reason for separation was "Misconduct." h. Army Regulation 635-5 (SPD/RE Code Cross Reference Table) shows the SPD of JKK had the corresponding RE Code of RE-4. i. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of published guidance on equity, injustice, or clemency. 26. MEDICAL REVIEW: .???? The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Solutions (HAIMS) were not in use during his time in service. His military hardcopy medical record was not available for review. The applicant asserts he has PTSD due to his service in Saudi Arabia and Kuwait. No psychiatric records were provided for review. A review of the Joint Longitudinal View (JLV) indicates the applicant has not been evaluated nor treated in the VA system. He does not have a service connected disability rating. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is no documentation to support a behavioral health diagnosis at the time of his discharge. There is no documented psychiatric condition to consider with respect to mitigation of his misconduct. a. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (a) No (2) Did the condition exist or experience occur during military service? (a) No (3) Does the condition experience actually excuse or mitigate the discharge? (a) N/A (4) Does the condition or experience outweigh the discharge? (a) N/A BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that partial relief was 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 the medical advisory the Board concurred with the advising official finding no documented psychiatric diagnosis to consider with respect to mitigation of his misconduct. The Board determined changes to the applicant’s separation code and RE Code are not warranted. However, the Board determined the punishment to be harsh and granted partial relief with an upgrade of the character of service to general under honorable conditions. The Board noted the applicant served in Southwest Asia from Dec 1990 to March 1991 and that time was not captured on his DD Form 214. Based on this the Board granted partial relief upgrading the applicant’s discharge to general under honorable conditions and correction to his records to reflect his deployment. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF TLS JFT KJS GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD form 214 to read characterization of service as general under honorable conditions and in item 18 (Remarks) “SERVICE IN SOUTHWEST ASIA FROM 12 December 1990 UNTIL 24 March 1991. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains upgrade of his under other than honorable conditions discharge to honorable and correction to his separation and reentry code. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 Army Board for Correction of Military Records (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. Army Regulation 2. 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. 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. 3. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. An honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 14-12c applied to Soldiers who had committed a serious military or civilian offense, and the UCMJ authorized a punitive (i.e. bad conduct or dishonorable) discharge for the offense. The regulation considered the abuse of illegal drugs as serious misconduct. All Soldiers who had committed a second offense, regardless of rank, had to be processed for separation. 3. The Manual for Courts-Martial, in effect at the time, Table of Maximum Punishments showed Article 112a (Wrongful Use, Possession, etc. of Controlled Substances) included both the dishonorable and bad conduct discharge as punishments. 4. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) is the source document for entries in item 28 of the DD Form 214. It states, Soldiers separated under the provisions of Army Regulation 635-200, Chapter 14 (Misconduct- Use of Illegal Drugs) were required to be assigned the SPD "JKK," and the associated narrative reason for separation was "Misconduct." 5. Army Regulation 635-5 (SPD/RE Code Cross Reference Table) shows the SPD of JKK had the corresponding RE Code of RE-4. 6. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (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) AR20220001596 1 ARMY BOARDFOR CORRECTION OF MILITARY RECORD RECORD OF PROCEEDINGS 1