IN THE CASE OF: BOARD DATE: 27 January 2023 DOCKET NUMBER: AR20220006156 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to honorable and his: * narrative reason for separation be changed to "Secretarial Authority" * separation code be changed to "JFF" (Secretarial Authority) APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel Brief (30 pages) with 50 exhibits * timeline graph * Report of Medical Examination, 27 September 2001 * Report of Medical History, 27 September 2001 * Statement of Enlistment, 9 October 2001 * Statement of Understanding, 9 October 2001 * Medical Records * Screening of Acute Medical Care, 11 February 2002 * Master Problem List * Standard Form (SF) 600 (Automated Treatment Record), 20 May 2002 * SF 600, 10 June 2002 * SF 600 (Chronological Record of Medical Care), 2 July 2002 * SF 600, 9 October 2002 * SF 600, 20 November 2002 * Medical Record- Supplemental Medical Data, 30 December 2002 * SF 600, 6 January 2003, * Physical Profile, 9 January 2003 * Physician's Discharge Summary, 29 May 2003 * SF 600, 10 June 2003 * SF 600, 7 July 2003 * Medical Record- Supplemental Medical Data, 21 July 2003 * SF 600, 26 November 2003 * Medical Record - Lower Back Pain, 26 November 2003 * SF 600, 18 December 2003 * SF 600, 27 January 2004 * SF 600, 3 February 2004 * DD Form 2795 - Health Assessment, 4 February 2004 * Post-Deployment Health Assessment, 28 March 2004 * SF 600, 29 September 2004 * Outpatient Medical Treatment, 19 October 2004 * SF 600, 22 October 2004 * DA Form 4187 (Personnel Action), 7 December 2002 * DA Form 4187, 10 December 2002 * Review Results, 6 February 2003 * Memorandum for Record, 18 February 2003 * Army Lodging Receipt, 25 October 2004 * Master Military Pay Account Printout, 2 December 2004 * DA Form 4856 (Developmental Counseling Forms) * 2 December 2003 * 22 September 2004 * 9 December 2004 * 13 December 2004 * 14 December 2004 * 28 January 2005 * DA Form 2627 (Summarized Record of Proceedings Under Article 15), 27 January 2005 * DA Form 2627, 16 March 2005 * Service Member's Group Life Insurance Election and Certificate, 23 February 2005 * Itemization of Charges, (divorce attorney), 30 April 2005 * Memorandum, dated 19 April 2005 * Memorandum, dated 29 April 2005 * Applicant's statement for separation authority * Memorandum, dated on or about 29 April 2005 * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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: a. Shortly after enlistment, he began experiencing chronic hamstring pain. The pain forced him to visit medical clinics or hospitals more than half a dozen times in 2002. He was frustrated because the doctors seemed unable to help me. His leg pain grew worse and eventually spread to his back. b. He took leave for Thanksgiving to attend to some problems with his wife and finances. He thought the time with her would help put their relationship back on the right track. While he was at Fort Polk, LA, his wife had overdrawn his credit cards and taken out several payday loans in his name. She was not making payments on their car loans (also under his name). All of this put him into debt and hurt his credit rating. c. His return flight to Fort Polk was cancelled due to a security threat. Although he grabbed the first available flight back, he was unable to depart until 9 December 2002. Fort Polk is a difficult place to reach, and the best route was his delayed flight from then a six-hour bus ride nearly all night long from returning to base the morning of 10 December. During his delayed return he was listed as absent without leave (AWOL) from midnight on 6 December 2002 to 1100 hours on 10 December. d. In January 2003, the pain in his leg and back got so bad that he was sent to Brooke Army Medical Center at Fort Sam Houston, TX. At the medical center, an Army doctor diagnosed him with severe lumbar spondylosis. He underwent a magnetic resonance imaging (MRI) that revealed degenerative disc disease in his back causing significant disc desiccation and significant central herniations. He underwent back surgery on 28 May 2003 at Brooke Army Medical Center. The doctors fused his four lower vertebrae together using two titanium rods and eight paired pedicle screws. e. He deployed to Iraq with his unit in February 2004. Despite his back pain and being told he could use the back problems and surgery to be medically returned to the States, he chose to stay and support his fellow Soldiers. Upon his return he learned of the financial problems his wife had created and the situation only worsened. The financial problems and his wife's badgering his command for more money resulted in his discharge. He ultimately divorced his wife in 2006. f. He remarried in 2016 and for a number of years was a stay-at-home father. He would like to return to the aviation operations field but needs a degree to do so. Due to the character of his discharge, he is unable to utilize his education benefits to obtain a degree. He has been advised that there are several errors in his file that warrant a review. 3. Counsel states: a. The applicant enlisted in the Army wishing to follow in his father's footsteps, a retired sergeant first class; however, less than a year later he was diagnosed with severe lumbar spondylosis. Despite the pain he deployed to Iraq and extended his deployment in support of his unit. Upon returning, he returned to serious marital discord and his estranged wife created repeated problems for him through his command. Additionally, his excruciating back pain continued, causing him to miss formation on two occasions. b. While considering the applicant's discipline in April 2005, his troop commander unknowingly relied on an erroneous DA Form 2627 that contained critical and substantive mistakes. Specifically, it purported to show a pattern of misconduct with three absences occurring within three months. In reality, the absences, two of which were the result of post-surgical back pain, occurred over the span of three years. There was no pattern of misconduct, only isolated events occurring years earlier. The troop commander, however, assuming the DA Form 2627 to be accurate, recommended a general discharge. c. The errors in the DA Form 2627 were compounded when the troop commander cited them in his own memorandum, in addition to mistakenly double counting an AWOL incident from 2002. The erroneous memorandum was then forwarded to the applicant's squadron and brigade commanders, and, upon further reliance on the erroneous memorandum and DA Form 267, a general discharge was ordered. His discharge constitutes both error and injustice. First, it was based upon erroneous facts purporting to show a pattern of misconduct. Second, commanders unjustly based the discharge on attendance issues and events outside of his control. Specifically, two of the applicant's missed formations were due to post-surgical back pain. The third attendance issue resulted from post-9/11 flight cancellations. d. Furthermore, the applicant was unjustly held responsible for his estranged wife's stalking behavior, an incident for which he had already suffered judicial punishment. He should not be held responsible for the vindictive actions of an estranged spouse, who he divorced as a result of her conduct. Her repeated calls to the applicant's leadership and unannounced visits were solely out of his control. Included in the counsel’s brief is a 23-page summation of the applicant's service and medical history in addition to the records provided. 4. The applicant enlisted in the Regular Army on 22 January 2002. He completed training with award of military occupational specialty 15P (Aviation Operations Specialist). The highest grade he held was E-3. 5. The applicant was reported as AWOL from 6 December through 10 December 2002. 6. The medical records provided by the applicant show he was diagnosed as suffering from chronic right hamstring pain on 8 April 2002; he was placed on a permanent profile on 9 January 2003. He was diagnosed with spondylosis and degenerative disc disease on 3 February 2003 and had undergone fusion of the L-3 through S-1 vertebra on 28 May 2003. He continued to receive treatment for this condition through the end of his period of service. 7. The applicant served in Iraq from 9 February to 14 July 2004. 8. Between 3 December 2003 and 25 January 2005, the applicant was formally counseled on six occasions for various infractions including failure to show up for formation, financial problems, leave policies and procedures, possible separation, and failure to obey an order or regulation. 9. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on 27 January 2005 for failure to go at the time prescribed to his appointed place of duty, on or about 21 September 2004 and 3 December 2004; for being AWOL from on or about 6 December 2004 until on or about 10 December 2004. 10. The applicant accepted NJP, under the provisions of Article 15 of the UCMJ, on 16 March 2005 for violation of a lawful general regulation, by having a visitor in his barracks room during non-visitation hours on or about 21 January 2005. His punishment included reduction to E-2. 11. A command directed Mental Status Evaluation on 10 March 2005, shows the applicant did not reveal any psychiatric conditions or symptoms. He had the mental capacity to understand and participate in the proceedings deemed appropriate by command. 12. The applicant's immediate commander notified the applicant, on 28 April 2005, of his intent to discharge him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 14, for a pattern of misconduct. 13. The applicant consulted with legal counsel and was advised of the basis for the contemplated discharge, the possible effects of an under honorable conditions discharge, and the procedures and rights that were available to him. He elected to submit a statement in his own behalf. 14. In his own behalf, the applicant stated he didn't feel that he should be released from the Army due to the fact that he had worked extremely hard for the past 51 months. He served in Iraq for just over six months. He could have gotten out of it because he had severe back problems before deployment orders came but he chose to have surgery and deploy with his unit. He had eight months left on his contract and wanted to reenlist for however long the Army needed him. 15. On 19 April 2005, the applicant's immediate commander formally recommended his separation from service under the provisions of Army Regulation 635-200, paragraph 14-12b for misconduct. The chain of command concurred with the recommendation. 16. The appropriate authority approved the discharge recommendation and directed the issuance a General Discharge Certificate. The requirement for a rehabilitative transfer was waived. 17. The applicant was discharged on 5 May 2005. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct and his service characterization was under honorable conditions (general). He was credited with 3 years, 3 months, and 9 days of net active service. He had one period of lost time. His awards are shown as the Presidential Unit Citation, National Defense Service Medal, Global War on Terrorism Service Medal, Army Service Ribbon, and the Iraq Campaign Medal. 18. The applicant provided documents showing he removed his wife as a beneficiary for any benefits, from Emergency Data Form, and initiated divorce proceedings in April of 2005. 19. 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. 20. 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 a discharge upgrade. He states: “While in service, I had an accident crash landed at night on an airborne operation which left me more damaged than I thought until it began to show in my behavior mentally and I was out of the dream I was living. I am now diagnosed 70% mental depression.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 for the period of Service under consideration shows he entered the Regular Army on 22 January 2002 and was discharged under honorable conditions (general) on 5 May 2005 under the separation authority provided by paragraph 14-12b of AR 635-200, Personnel Separations – Enlisted Personnel (1 November 2000): Pattern of Misconduct. It shows Service in Iraq from 9 February 2004 thru 14 July 2004. c. The applicant received numerous negative counseling statements for several violations of the UCMJ, including failure to repair and an absence without leave; failure to obey an order or regulation; making, drawing, or uttering check, draft, or order without sufficient funds; making and-uttering-by dishonorably failing to maintain funds; and dishonorably failing to pay. He received an Article 15 for several incidents of failure to repair and a second Article 15 for having a visitor in his barracks room during non- visitation hours . d. On 28April 2005, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, AR 635-200, for reason of a pattern of misconduct: “The reasons for my proposed separation are as follows: On 21 January 2005, you violated a lawful general regulation. On 6 December 2004, 3 December 2004, and 21 September 2004, you failed to go at the time prescribed to your appointed place of duty. You were absent without leave from 06 December 2002 to 10 December 2002. e. The applicant’s pre-separation medical evaluation shows the applicant reported intermittent low back pain if he lifted heavy objects and had a non-duty limiting permanent profile for a history of lumbar fusion. f. The applicant underwent a mental status evaluation on 10 March 2005. The provider documented a normal examination, found no evidence of an emotional or mental disorder of psychiatric significance to warrant disposition through medical channels, and psychiatrically cleared him for any administrative action as deemed appropriate by command. g. The recommended separation action with a general discharge certificate was approved by the brigade commander in an undated memorandum. h. Review of his records in JLV shows he has been diagnosed with major depressive disorder and has a 50% disability rating for this condition. Kurta Questions: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes: Depression (2) Did the condition exist or experience occur during military service? Yes (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. As there is an association between depression and avoidant behaviors, there is a nexus between the applicant’s diagnosed mental health condition, his failure to repair, and incident of AWOL. However, the condition cannot mitigate the other actions which resulted in his administrative discharge as the condition does not interfere with one’s ability to distinguish between right and wrong and act in accordance with the right. BOARD DISCUSSION: 1. 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 to include deployment, the frequency and nature of his misconduct and the reason for his separation. The Board considered the applicant's PTSD claim and the review and conclusions of the ARBA Medical Advisor. 2. The Board found evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct being partially mitigated by depression. Considering his overall record of service, the Board found the decision to discharge him for misconduct when he had nearly reached the expiration of his term of service was unjust. Based on a preponderance of evidence, the Board determined the applicant’s character of service should be changed to honorable and the reason for his discharge should be changed to Secretarial authority. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing his DD Form 214 to show in: * Block 24 (Character of Service) – Honorable * Block 25 (Separation Authority) – AR 635-200, Chapter 5 * Block 26 (Separation Code) – JFF * Block 29 (Narrative Reason for Separation) – Secretarial authority 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, U.S. Code, 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. 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 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided 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 Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 (Separation for Misconduct) establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. d. Paragraph 14-12b (A pattern of misconduct) states a Soldier may be discharged for pattern of misconduct consisting of one of the following: (1) Discreditable involvement with civil or military authorities. (2) Discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army. e. Paragraph 5-3 (Secretarial plenary authority) provides that a separation under this paragraph is the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee as announced in updated memorandums.. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards 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.) AR20220006156 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1