IN THE CASE OF: BOARD DATE: 14 October 2022 DOCKET NUMBER: AR20220002720 APPLICANT’S REQUEST: Upgrade of his Under Honorable Conditions (General) discharge to an Honorable discharge. APPLICANT'S SUPPORTING DOCUMENT CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge) 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 to Honorable. He indicated on his DD Form 293 that Post-Traumatic Stress Disorder (PTSD) is related to his request, but he did not discuss it any further in his application. 3. On 20 November 2003, the applicant enlisted in the Regular Army for a period of 3 years. He served in Iraq from 18 October 2004 until 18 October 2005. He was promoted to the rank/grade of Specialist/E-4 effective 1 July 2005. On 20 August 2005, the applicant reenlisted for a period of 6 years. 4. The applicant tested positive for wrongful use of cocaine and marijuana as a result of a urine sample collected during a unit urinalysis on 5 December 2005. 5. A DA Form 7099 (Army Substance Abuse Program (ASAP) Outpatient Biopsychosocial Evaluation) shows the applicant was referred to the Substance Abuse Rehabilitation Department and scheduled for an appointment with the new patient orientation group on 24 January 2006. He was also advised of other agencies where he could seek assistance, recommended for immediate involvement with the Fort Hood Alcoholics Anonymous group, and advised to abstain from alcohol and non-medically prescribed drugs. 6. On 25 January 2006, the applicant underwent a pre-separation medical examination which shows, in part: a. He self-reported, in part, that he: * was not currently taking any medications * had used illegal drugs (cannabis and cocaine) * had never been treated in an emergency room * 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. 7. The applicant underwent a mental status evaluation on 3 March 2006. The examining Clinical Psychologist determined he: * had the mental capacity to understand and participate in the proceedings * was mentally responsible * met regulatory retention requirements * was psychologically cleared for an administrative action deemed appropriate by command 8. On 13 March 2006, 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 based upon his wrongful use of illegal drugs. He advised the applicant he was recommending that he receive a General, Under Honorable Conditions discharge. However, the intermediate commanders and the separation authority were not bound by his recommendation. The applicant acknowledged receipt of the notification on the same date. 9. On 5 April 2006, the applicant acknowledged he had 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 consulting counsel and representation by military counsel and/or civilian counsel, at no expense to the Government. He elected not to a submit statement in his own behalf. 10. 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 based upon his wrongful use of cocaine. The intermediate commander recommended approval of the request with a service characterization of General, Under Honorable Conditions. 11. The separation authority approved the recommended discharge and directed the applicant's service be characterized as General, Under Honorable Conditions. 12. The applicant was discharged on 18 May 2006. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in: (1) block 12 (Record of Service) – He completed 2 years, 5 months, and 29 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 National Defense Service Medal, Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, and Army Service Ribbon. (3) block 18 (Remarks) - He served in Iraq from 18 October 2004 until 18 October 2005. He did not complete his first term of service. (4) block 24 (Character of Service) - His characterization of service was Under Honorable Conditions (General). (5) block 25 (Separation Authority) - The authority for his separation was Army Regulation 635-200, Chapter 14, Paragraph 14-12c. (6) block 26 (Separation Code) - His Separation Program Designator Code was "JKK." (7) block 27 (Reentry Code) - His Reentry Eligibility (RE) Code was "4." (8) block 28 (Narrative Reason for Separation) - The narrative reason for his separation was "Misconduct (Drug Abuse)." 13. The applicant’s record is void of evidence and he has not provided any evidence which shows during his period of service that he was diagnosed with PTSD or any other medical or behavioral health condition. 14. 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. 15. 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. 16. MEDICAL REVIEW: The applicant is applying to the ABCMR requesting an upgrade of his Under Honorable Conditions (General) discharge to an Honorable 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 20 November 2003; 2) He served in Iraq 18 October 2004 – 18 October 2005; 3) On 18 May 2006, he was separated under provisions of AR635-200, Chapters 12c, commission of a serious offense based upon wrongful use of illegal drugs. b. The Army Electronic Medical Record (AHLTA), VA Electronic Medical Record (JLV), and the Record of Proceedings (ROP) were reviewed. No additional hardcopy military or civilian medical records were provided for review. A review of AHLTA is void of a PTSD diagnosis, however records do show the applicant was enrolled in the Family Advocacy Program (FAP) from November 2005 – May 2006, with a diagnosis of Other Specified Family Circumstances. Records also show the applicant was referred to ASAP and received treatment from January 2006 – May 2006. No specific information regarding treatment was available in AHLTA. The record was void of any other BH diagnosis or treatment for the applicant. c. A review of JLV show the applicant is 60 percent service-connected with 50 percent service-connection for PTSD associated with this time in service: current effective date of rating is 17 October 2009. Records show the applicant first engaged in treatment at the VA on 7 October 2009 as a walk-in; he complained of SI in the context of having difficulty adjusting to normal life. On 21 October 2009 the applicant was diagnosed with Substance Induced Mood Disorder (SIMD) (Alcohol, Marijuana, Cocaine), and Adjustment Disorder w/Anxiety. He received outpatient treatment, intermittently, from 2009 to early 2017. On 24 April 2017 the applicant requested PTSD specific treatment, noting he had been diagnosed with PTSD by a Nurse Practitioner, we recommended he seek specific treatment to address issues he was having with returning to the workforce. The applicant reported traumatic experiences to include fearing for his life as a gunner, almost running over a small girl during a convoy, and receiving indirect fire on the FOB. The provider of record on 24 April 2017 diagnosed the applicant with SIMD, r/o PTSD. There is no evidence in the record of the applicant receiving evidence based treated for PTSD, and although the applicant records show he is service connected for PTSD, this writer was unable to locate the Compensation and Pension Examination informing the decision. Applicant last engaged in BH treatment at the Cleveland VA on 23 December 2020; diagnosis reflect Adjustment Disorder w/mixed Anxiety and Depressed Mood, and PTSD. d. Based on the available information, it is the opinion of the Agency BH Advisor the applicant likely did not have PTSD during his time in service. However, given the liberal consideration policy, the applicant’s contention that he experienced PTSD symptoms, and VA records showing a service-connected diagnosis of PTSD, this writer is compelled to say the applicant had a condition or experience that mitigated his misconduct. e. 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 has a PTSD service connected disability rating of 50 percent. (2) Did the condition exist or experience occur during military service? Yes, the experience reportedly occurred while deployed to Iraq. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. There is a clear nexus between substance use, for self-medicating purposes, and PTSD. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was partially 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. 1. The applicant was discharged from active duty due to Misconduct – Commission of a Serious Offense. The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. a. A majority of the Board agreed that although the advising official found evidence of in-service mitigating factors to overcome the misconduct, the fact remains that the applicant did abuse illegal drugs and despite his abuse of drugs, he still received a general discharge. Upgrading his discharge would be inequitable to the thousands of Soldiers who served honorably without abusing illegal drugs. Based on a preponderance of evidence, a majority of the Board determined that the character of service the applicant received upon separation was not in error or unjust. b. The member in the minority concurred with the medical advisory opinion finding sufficient evidence of in-service mitigating factors to overcome the misconduct. 2. The applicant served two periods of service: A review of the applicant’s records shows his DD Form 214 omitted administrative entries in the Remarks block. As a result, all Board members agreed that his DD Form 214 should be amended to show his continuous honorable service for his first enlistment. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : :X GRANT FULL RELIEF :X :X : 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 Block 18 of his DD Form 214 as follows: * add the entry “Continuous honorable active service from 20 November 2003 to 19 August 2005.” * amend the entry to show “Member completed first term of service” 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 to upgrading the characterization of his discharge. 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 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 has occurred by a preponderance of the evidence. It is not an investigative body. 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 "JKK" is the 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 "4" 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) AR20220002720 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1