IN THE CASE OF: BOARD DATE: 20 October 2022 DOCKET NUMBER: AR20220003544 APPLICANT REQUESTS: upgrade of his under other than honorable conditions (UOTHC) discharge and a personal appearance before the Board via video/telephone. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), with a self-authored statement * A copy of his entire service record, including his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 12 April 2005 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 he is requesting an upgrade to receive Department of Veterans Affairs (VA) mental health and medical services. He was struggling with mental health issues while serving and after discharge. He was not aware of these issues, but is trying to get help with his condition through the VA. His mental disability has impacted his ability to make decisions. 3. The applicant's service record shows: a. On 9 February 2004, the applicant underwent a medical examination in preparation for enlistment into the Regular Army. His DD Form 2808 (Report of Medical Examination) shows he did not report any mental concerns or medical conditions and was subsequently qualified for enlistment. b. On 23 March 2004, the applicant enlisted in the Regular Army for a 5-year service obligation. Upon completion of initial entry training he was assigned to Fort Campbell, KY, and arrived at his duty station on 19 July 2004. c. On 5 October 2004, the applicant submitted a urine sample as part of a random unit urinalysis. The sample he submitted tested positive for cocaine. On 4 November 2004 the applicant submitted a second urine sample which also tested positive for cocaine. d. On 2 November 2004, the applicant accepted non-judicial punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for the following offenses: * two specifications of failing to go to his appointed place of duty at the prescribed time, on or about 4 October 2004, and on or about 17 October 2004 * willfully disobeying a lawful order from his superior commissioned officer on or about 5 October 2004 * two specifications of wrongfully using cocaine, on or about 5 October 2004 and on or about 18 October 2004 * his punishment included reduction to paygrade E-1 and a suspend forfeiture of pay e. On 19 November 2004, the previously suspended portion of his punishment was vacated due to his failure to go to his appointed place of duty at the prescribed time, on or about 19 November 2004. f. On 17 December 2004, the applicant underwent a mental status examination. His DA Form 3822-R (Report of Mental Status Evaluation) shows he had the mental capacity to understand and participate in proceedings. He was psychiatrically cleared for any administrative action deemed appropriate by command. g. On 1 February 2005 court-martial charges were preferred against the applicant, for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with: * absenting himself without leave (AWOL) from his unit on or about 28 December 2004 until apprehended on or about 29 January 2005 * wrongfully using cocaine between on or about 31 October 2004 and on or about 4 November 2004 h. On 1 February 2005, the applicant completed an Offer to Plead Guilty to the charges and to waive his right to a separation board in return for the convening authority's agreement to the following: * Not preferring additional charges or taking any other UCMJ action for the urine sample provided by the applicant on or about 31 January 2005, contingent upon him committing no further acts of misconduct * Crediting any adjudged sentence with day-for-day credit for each day the accused spent in pretrial confinement * Disapprove any adjudged hard labor without confinement or extra duty * Referring the above charges to a Summary Court Martial i. On 3 February 2005, the applicant's commander accepted his plea offer. Subsequently, he was tried by summary court-martial on 4 February 2004, and sentenced to 30 days confinement, and credited with six days pretrial confinement. j. On 9 February 2005, the Headquarters 101st Airborne Division, Staff Judge Advocate's Office conducted a Supplementary Review of his case and concluded his court-martial was free of errors and the sentence imposed was legal. k. On 19 February 2005, the applicant was released from confinement. On 23 February 2005, he underwent a separation examination, wherein he reported: knee trouble, he was in good health, and he had a tumor, growth, cysts, or cancer. The examining provider noted he had knee trouble retro-patellar pain syndrome for about a year and had multiple pilonidal cysts removed from his neck, and he was qualified for separation. l. On 25 February 2005, the applicant's commander notified the applicant of his intent to initiate actions to separate him from service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c for serious misconduct. The commander cited the specific reasons included the applicant's two counts of abusing cocaine, his AWOL, two failures to report and disobeying a lawful order. He indicated he was recommending the applicant receive an UOTHC discharge. The applicant acknowledged receipt on the same date. m. On 25 February 2005, the applicant's commander formally recommended his separation from service, under the provisions of Army Regulation 635-200, paragraph 14-12c. The chain of command concurred with the recommendation. n. On 1 March 2005, the applicant consulted with counsel and acknowledged receipt of the proposed separation notification memorandum. He was advised of the rights available to him, and he elected not to submit a statement in his own behalf. He elected to submit a statement in his own behalf; however, no statement is available for review. o. On 4 April 2005, the separation authority approved the applicant's discharge and directed he be separated with an UOTHC discharge. p. On 12 April 2005, the applicant was discharged accordingly. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 14-12c, for misconduct. His service was characterized as UOTHC. He was credited with completing 10 months and 24 days of net active service. He was awarded or authorized the Global War on Terrorism Service Medal, National Defense Service Medal, and the Army Service Ribbon. 4. The applicant provides his entire service record in support of his request. 5. 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. 6. 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. 7. MEDICAL REVIEW: The applicant is applying to the ABCMR requesting a discharge upgrade of his UOTHC discharge. He contends that his struggled with mental health issues while serving in the military and post-service. a. The Agency BH Advisor was asked to review this case. Documentation reviewed includes the applicant’s completed DD149 and supporting documentation; the ABCMR Record of Proceedings (ROP); the electronic military medical record, AHLTA; the VA electronic military record, JLV. No hard copy military medical records or civilian medical documentation was provided for review. b. The specific facts and circumstances of the applicant’s case can be found in the ROP. Pertinent to this medical advisory are the following: 1) The applicant entered active duty on 23 March 2004; 2) The applicant underwent urinalysis and tested positive for cocaine on 5 Oct 2004 and on 4 Nov 2004; 3) The applicant absented himself without leave from 28 Dec 2004 until 29 Jan 2005. 4) On 25 Feb 2005, the applicant’s commander recommended he be separated from the service IAW AR 635-200, Chapter 14-12c. The commander cited the specific reasons for separation: applicant’s two counts of abusing cocaine; his AWOL; two Failures to Report; Disobeying a lawful order. 5) On 12 Apr 2005, the applicant was discharged from the service. c. Review of AHLTA indicates that the applicant was diagnosed on active duty with the following BH conditions: Alcohol Disorders; Cocaine-Related Disorders. A BH note dated 21 Oct 2004 indicates that the applicant had been enrolled in the ASAP outpatient treatment program with the diagnoses of Cocaine-Related Disorders and Alcohol Disorders. d. Review of the VA electronic medical record, JLV, indicates that the applicant is service connected (0%) for PTSD. {Note: To receive VA compensation and/or pension benefits, the Veteran’s character of service must be either honorable or under honorable conditions}. VA records also indicate applicant has reported he experienced military sexual trauma (MST) while in the army. e. Based on the available information, it is the opinion of the Agency BH Advisor that the applicant has a mitigating BH condition, PTSD due to MST. As there is an association between PTSD/MST, avoidant behaviors and use of substances for self- mediation, there is a nexus between the applicant’s diagnosis of PTSD/MST and his period of AWOL, Failure to Report and wrongful use of cocaine x 2. As there is an association between PTSD/MST and difficulty with authority figures, there is a nexus between applicant’s diagnosis of PTSD/MST and his misconduct of disobeying a lawful order. f. 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 been diagnosed with the potentially mitigating diagnosis of PTSD due to MST. (2) Did the condition exist or experience occur during military service? (a) Yes, the VA has established service connection for the applicant’s diagnosis of PTSD due to MST. (3) Does the condition or experience actually excuse or mitigate the discharge? (a) Yes, it is the opinion of the Agency BH Advisor that the applicant has a mitigating BH condition, PTSD due to MST. As there is an association between PTSD/MST, avoidant behaviors and use of substances for self- mediation, there is a nexus between the applicant’s diagnosis of PTSD/MST and his period of AWOL, Failure to Report and wrongful use of cocaine x 2. As there is an association between PTSD/MST and difficulty with authority figures, there is a nexus between applicant’s diagnosis of PTSD/MST and his misconduct of disobeying a lawful order. BOARD DISCUSSION: 1. The Board found the available evidence sufficient to consider this case fully and fairly without a personal appearance by the applicant. 2. The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense 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 applicant's mental health claim and the review and conclusions of the Army Review Boards Agency Behavioral Health Advisor. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board found insufficient evidence of in-service mitigating factors and did not concur with the conclusion of the medical advising official regarding his misconduct being mitigated by PTSD. The Board noted the significant amount of misconduct in less than 11 months of service as a factor in making a determination in this case. Based on a preponderance of evidence, the Board determined 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 :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 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 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 has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. This regulation provides that: 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 of this regulation in effect at the time, established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. An UOTHC discharge was normally considered appropriate. However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record. 4. 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. 5. 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. 6. 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) AR20220003544 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1