IN THE CASE OF: BOARD DATE: 24 August 2022 DOCKET NUMBER: AR20220002004 APPLICANT’S REQUEST: The applicant requests an upgrade of his general under honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant PTSD Impact Statement, undated * Separation Orders 96-47, 5 April 2000 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * eBenefits - Disabilities * Veterans Affairs (VA) Form 21-0781a (Statement in Support of Claim for Service Connection Post-Traumatic Stress Disorder (PTSD) Secondary to Personal Assault), 10 February 2020 * VA Form 21-4138 (Statement in Support of Claim), 13 February 2020 * VA Form 21-4138, 27 March 2020 * VA Rating Decision, 30 October 2020 * VA Summary of Benefits, 7 September 2021 * VA Verification of Service-Connected Disabilities, 7 September 2021 * Psychologist Consultation, 29 September 2021 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 per the Hagel Memorandum, liberal consideration should be given for military records that document symptoms of PTSD and whether a veteran had PTSD during service. Also, special consideration should be given for VA diagnosis of service-connected PTSD. The Board should consider if the undiagnosed PTSD contributed to his misconduct at the time of discharge. The applicant’s PTSD impact statement states: a. While stationed at Fort Lee, VA he was physically assaulted by a group of Soldiers. He has struggled with PTSD in every aspect of his life since then. He does not have a life and keeps to himself with his guard up at all times. He does not trust anyone and hates being around crowds and gatherings. He has had no contact with his parents for over 6 years because he prefers to stay distant and cope on his own. He can lay in bed for weeks at a time without bathing or grooming. b. The applicant has not had a steady job since 2005. Just getting up and getting ready for work can be a task. His fear of crowds prevents him from taking public transportation. His behavior and legal history has been quiet since 2007. He was convicted of second-degree sexual assault of a child under 16 and believes his depression and PTSD had something to do with it. He was a grown man and still had an immature mind. At times, he turned to substances to cope, to include weed, alcohol, PCP (Phencyclidine), ecstasy, and cocaine and has two drinking while under the influence (DUI) charges. 3. A review of the applicant's record shows on 7 April 1998, at the age of 21 years, 3 months, and 24 days he enlisted in the Regular Army for 3 years. a. On 13 October 1998, he was assigned to 1st Battalion, 3rd Aviation Regiment, Hunter Army Airfield, GA. b. Sometime prior to August 1999, he was promoted to the ranks of private two (PV2/E2) and private first class (PFC/E3). c. Drug test results, 6 July 1999 and a DD Form 2624 (Specimen Custody Document - Drug Testing), 14 July 1999, shows the applicant tested positive for THC (tetrahydrocannabinol, also known as marijuana) from a urinalysis test taken on 6 July 1999. d. A DA Form 4856 (General Counseling), 19 July 1999, shows the applicant was counseled for failing a urine test on 6 July 1999 and was informed that he would be recommended for uniform code of military justice (UCMJ) action. e. On 25 August 1999, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15, UCMJ. Block 1 of DA Form 2627 (Report of Proceedings under Article 15, UCMJ), states “See Continuation Sheet” for the misconduct (the continuation sheet is unavailable for review). He received reduction to private (PVT/E1), suspended, to be automatically remitted if not vacated before 31 January 2000, forfeiture of $558.00 pay per month for 2 months, and 30 days extra duty. f. On 26 September 1999 - (1) A sworn statement by Sergeant Military Police (MP), states about 0240hrs the applicant came through the Wilson gate in his Ford Taurus with the inside of the vehicle smelling like an alcoholic beverage. He was pulled over, given a walk and turn and a one leg stand test which he failed. He was taken to the MP station and placed on an IR 5000 [breath tester] which he blew .125. The applicant was cooperative and polite, upon completion he was given a post driving suspension and released to his unit. (2) The applicant’s immediate commander informed the brigade and division commanders that he was apprehended for DUI. (3) The applicant acknowledged the temporary suspension of his driver’s license and privileges to operate a motor vehicle in the State of and on Fort Stewart/Hunter Army Airfield. g. On 28 September 1999 - (1) The applicant’s 25 August 1999 NJP under the provisions of Article 15, UCMJ, was vacated and he was reduced to the rank of PVT for physically controlling a vehicle, a passenger car, while his alcohol concentration in his breath was 0.10 grams of alcohol per 210 liters of breath or greater. (2) A DA Form 4856 shows the applicant was counseled for being arrested for DUI and was informed that he would be recommended for UCMJ action. h. A DA Form 3975 (MP Report), 29 September 1999, states on 26 September 1999, the applicant approached a gate for an identification card check, an alcoholic beverage odor emitted from the vehicle, he was given a field sobriety test which he failed. He was transported to the MP station and administered a breathalyzer test, resulting in .125 grams. The applicant received suspension of installation driving privileges. i. On 23 March 2000, the trial counsel reviewed and deemed the elimination packet legally sufficient. j. The applicant’s mental examination was completed on 8 February 2000 and medical examination on 16 February 2000; however, both are unavailable for review. k. On 29 March 2000, his immediate commander notified him that he was being recommended for separation under the provisions of AR 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c (commission of a serious offense) for violation of Article 111, operating a vehicle while drunk and violation of Article 112a, wrongful use of marijuana, a controlled substance. His commander informed him he was recommending a general, under honorable conditions characterization of service. l. On 31 March 2000, the applicant consulted with legal counsel and was advised of the contemplated action to separate him under the provisions of AR 635-200, paragraph 14-12c (Commission of a Serious Offense), and its effects, and the rights available to him. He elected not to submit a statement on his own behalf. m. On 3 April 2000, the applicant’s immediate and intermediate commanders recommended him for separation under AR 635-200, Chapter 14, paragraph 14-12c (commission of a serious offense) prior to his expiration term of service with a general, under honorable conditions discharge. n. On 4 April 2000, the appropriate authority approved separation under the provisions of AR 635-200, Chapter 14, paragraph 14-12c (Commission of a Serious Offense) with a general, under honorable conditions discharge. The applicant was not transferred to the Individual Ready Reserve. 4. On 9 July 2002, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his general under honorable conditions discharge. On 16 October 2002, after careful review of his application, military records and all other available evidence, the ADRB determined the applicant was properly and equitably discharged and denied his request. 5. The applicant in support of his application provides: a. Separation Orders 96-47, 5 April 2000, shows he was assigned to the U.S. Army Transition Point, Hunter Army Airfield, GA for transition processing, effective 13 April 2000. b. A DD Form 214 shows he was discharged accordingly on 13 April 2000. He was discharged from active duty under the provisions of AR 635-200, paragraph 14-12c (2) (Misconduct) with an under honorable conditions (general) character of service. He completed 2 years and 7 days of net active service during this period. His DD Form 214 shows in: * Block 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) - Army Service Ribbon * Block 24 (Character of Service) - Under Honorable Conditions (General) * Block 25 (Separation Authority) - AR 635-200, paragraph 14-12c (2) * Block 26 (Separation Code) - "JKK" * Block 27 (Reentry (RE) Code) - "3" * Block 28 (Narrative Reason for Separation) - Misconduct c. VA Form 21-0781a, 10 February 2020, states while in advanced individual training he placed on a weekend pass and went to a club on 3 July 1998 with some platoon members. While speaking to a black American female, a black American male told him to stop talking to her. When he left the club, he saw the female and said goodbye to her, shortly after that he was attacked. He went to the hospital on 7 July 1998 and the Criminal Investigation Division interviewed him a few weeks later, however he is unaware if his attackers were ever caught and brought to justice. d. VA Form 21-4138, 13 February 2020, written in support of a VA claim, see applicant’s PTSD impact statement above. e. eBenefits - shows he has the following rated disabilities: * Ptosis Left Eye, 20 percent (%), effective 8 November 2019 * PTSD, 30%, effective 8 November 2019 * Hypertension, 20%, effective 12 March 2020 f. VA Form 21-4138, 27 March 2020, written in support of a VA claim, states his assault has affected him tremendously. He felt his country let him down for not finding his attackers. This led him into depression, low morale, obsessive drinking, and marijuana use. g. VA Rating Decision, 30 October 2020, shows he filed a new claim on 29 January 2020 and was awarded service-connection for hypertension with a 20% rating effective 12 March 2020. h. VA Summary of Benefits, 7 September 2021, shows he has a 60% service- connected disability rating. i. VA Verification of Service-Connected Disabilities, 7 September 2021, shows his service-connected disabilities as PTSD, 30%, Ptosis Left Eye, 20%, and hypertension, 20%. j. Psychologist Consultation, 29 September 2021, states overall, the applicant has been experiencing a persistent degree of emotional distress following the trauma(s) experienced in the military, including hypervigilance, avoidance of anxiety-provoking situations, irritability, aggressive thoughts/tendencies, social withdrawal, depressed mood, very low energy and motivation, panic attacks, and poor sleep. His emotional difficulties adversely impact multiple facets of life including social, occupational, and family environments. Additionally, there are cognitive consequences to mood symptoms. 6. 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. a. The applicant request an upgrade and states liberal consideration should be given for military records that document symptoms of PTSD and whether a veteran had PTSD during service and if the undiagnosed PTSD contributed to his misconduct at the time of discharge. b. The applicant’s record shows he operated a vehicle while drunk and wrongfully used marijuana. He completed 2 years of his 3-year contractual obligation. c. In regard to the applicant’s PTSD. (1) The Office of the Undersecretary of Defense for Personnel and Readiness provides guidance that 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 mental health conditions, Traumatic Brain Injury (TBI), PTSD, sexual harassment and sexual assault. The veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. (2) Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part of mental health conditions, including PTSD. The veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. d. AR 635-200 states commanders will ensure that adequate counseling and rehabilitative measures have been taken before initiating action to separate a member. Waiving rehabilitation applies when it would not be in the best interest of the Army as it would not produce a quality Soldier. Chapter 14 separates members who demonstrate or display patterns of misconduct. 7. 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. 8. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting an upgrade of his 14 October 1998 discharge characterized as under honorable conditions (general). b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows he entered the regular Army on 26 June 1997 and was discharged on 14 October 1998 under the separation authority provided by paragraph 14-12c(2) of AR 635-200, Personnel Separations – Enlisted Personnel (26 June 1996): “Commission of a serious offense.” c. The request for a discharge upgrade was denied by the ADRB on 16 October 2002 (AR2002076133). Rather than repeat their findings here, the board is referred to the record of proceedings for that case. Because this denial was before the institution of liberal consideration polices, this review will concentrate on evidence of a potentially mitigating mental health condition as well as new evidence submitted with this application. d. The applicant tested positive for tetrahydrocannabinol (THC) on a 6 July 1999 unit urinalysis. The applicant received an Article 15 for this UCMJ violation. e. The applicant was arrested for driving under the influence on 26 September 1999 as he was passing through the Wilson gate check point entering Hunter Army Airfield, GA. The applicant received an Article 15 for this UCMJ violation. f. On 29 March 2000, the applicant’s company commander notified the applicant he was initiating separation action under paragraph 14-12c of AR 635-200: “The reasons for my proposed action are your violation of Article 111, operating a vehicle while drunk and violation of Article 112a, wrongful use of marijuana, a controlled substance. I am recommending that you receive a general, under honorable conditions characterization of service. My recommendation and your reply will be submitted to the Commander, Aviation Brigade, who will make the final decision in your case.” g. The acting brigade commander approved the applicant’s discharge on 4 April 2000: “The separation of PV1 {Applicant} from the United States Army UP AR 635-200, Chapter 14, Paragraph 14-12c, Commission of a Serious Offense, is approved. (1) PV1 {Applicant} 's service will be characterized as general, under honorable conditions. (2) PV1 {Applicant} will not be transferred to the Individual Ready Reserve (IRR). (3) The soldier will be out-processed from this installation within five (5) working days.” h. Review of submitted VA documentation shows the applicant has been diagnosed with PTSD reported to be the result of being assaulted by another Soldier in 1998 while he was in advanced individual training (AIT). i. Based on the information currently available and in accordance with the Liberal Consideration guidance, it is the opinion of the ARBA medical advisor that the applicant’s PTSD mitigates the UCMJ violations which resulted in his administrative separation. As PTSD is associated with the illicit use of substances and/or alcohol to self-medicate symptoms, there is a nexus between his diagnosis of PTSD and his marijuana use and alcohol misuse (DUI). Kurta Questions: A. Did the applicant have a condition or experience that may excuse or mitigate the discharge? YES B. Did the condition exist or experience occur during military service? YES C. Does the condition or experience actually excuse or mitigate the discharge? YES BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records, a medical advisory opinion, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the medical records and conclusions of the advising official. One possible outcome was to approve the applicant’s request based upon guidance for consideration of discharge upgrade requests. Notwithstanding the findings of mitigation by the medical advisor, based upon the misconduct involved and the fact the applicant already received a general discharge, the Board concluded there was insufficient evidence of an error or injustice warranting a change to the applicant’s characterization of service. 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, 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 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. AR 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set 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 establishes policy and prescribes procedures for separating members for misconduct. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. An under other than honorable conditions discharge 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. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. Paragraph 14-12c provides for the separation when there is a pattern of misconduct involving acts of drug abuse. d. Paragraph 1-18 waives the rehabilitation transfer because it would not be in the best interest of the Army as it would not produce a quality Soldier. 4. 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 Discharge Review Boards (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. 5. 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) AR20220002004 1 ABCMR Record of Proceedings AR20220002004 1