IN THE CASE OF: BOARD DATE: 14 March 2023 DOCKET NUMBER: AR20220006212 APPLICANT REQUESTS: an upgrade of his characterization of service from under honorable conditions (general) to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Benefit Information, 8 October 2021 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 he is currently receiving mental health services for Post- Traumatic Stress Disorder (PTSD) through the Department of Veterans Affairs. He applied for numerous benefits but was denied due to the type of discharge he received. He was denied United Services Automobile Association (USAA) insurance and he is not able to get Service-Disabled Veterans Insurance. He was unaware he had PTSD until recently. He is currently receiving help and he is correcting his records. 3. The applicant enlisted in the Regular Army on 18 July 1990. The highest rank he held was specialist (SPC)/E-4. 4. The applicant was counseled for the following: * 19 March 1992 - bounced checks and failure to pay debt, resulting in a court date * 8 April 1992 - dishonored checks 5. On 12 May 1992, the applicant's commander received notification that the applicant's installation check cashing privileges were suspended for 12 months due to dishonored checks. 6. On 8 September 1992, the applicant's commander received notification of the applicant's failure to pay his Deferred Payment Plan (DPP). 7. On 24 November 1992, the applicant was counseled for: * Failure to pay debts and lying to his company commander * Dereliction of duties, negligence to personal responsibilities, writing a bad check, and failure to pay a bill 8. On 2 March 1993, the applicant's unit commander received notification from the Army and Air Force Exchange Service (AAFES) collection manager concerning the applicant's delinquent DPP account. 9. On 8 March 1993, the applicant was counseled for the following: * Fined for driving without insurance * Failure to make car payments * Failure to make DPP payment * Late on video return/payment 10. On 1 July 1993, the applicant's immediate commander notified the applicant of his intent to initiate separation actions against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b, by reason of a pattern of misconduct. The commander listed the following reasons for the proposed action: continuously failed to maintain adequate funds in his checking account to honor checks that had been written to various organizations; counseled several times on his responsibilities to ensure that this type of misconduct is not repeated; and electing to ignore all previous counseling. The commander informed the applicant he was recommending he receive a general, under honorable conditions discharge and explained his rights, which included: a. Consult with military counsel or with civilian counsel retained at his own expense within a reasonable time (not less than 3 days). b. Submit statements on his own behalf. c. Request copies of documents that will be sent to the separation authority supporting the proposed separation. d. Entitled to a hearing before an administrative board if he had 6 or more years of active and Reserve military service at the time of separation. e. Waive the above rights in writing at any time prior to the date the separation authority approves the separation. Failure to respond within 7 duty days constitutes a waiver of these rights. f. Submit a conditional waiver of rights to have his case heard by an administrative separation board. 11. On 1 July 1993, the applicant acknowledged receipt of the notification and on 6 July 1993 after being advised by his consulting counsel of the basis for the contemplated action to separate him for misconduct under AR 635-200, chapter 14, and its effects; of the rights available to him; and the effect of any action he took in waiving his rights. He understood that if he had less than 6 years of total active and Reserve military service at the time of separation and was being considered for separation for reason of misconduct under AR 635-200, Chapter 14, he was not entitled to have his case heard by an administrative separation board unless he was being considered for a discharge under other than honorable conditions. a. He waived personal appearance and consideration of his case by an administrative separation Board. b. He understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He further understood that, if he received a discharge certificate/character of service which was less than honorable, he may make application to the Army Discharge Review Board (ARBA) or the Army Board for Correction of Military Records (ABCMR) for upgrading; however, an act of consideration by either board did not imply that his discharge will be upgraded. c. He understood that he was ineligible to apply for enlistment in the United States Army for a period of 2 years after discharge. 12. On 8 July 1993, the applicant's immediate commander recommended approval of the separation under the provisions of AR 635-200, paragraph 14-12b, a pattern of misconduct, with a general, under honorable conditions discharge. 13. The applicant underwent a mental status evaluation on 9 July 1993 for the purpose of separation. The behavioral science specialist diagnosed the applicant with alcohol abuse, episodic. He stated that the applicant had a significant alcohol abuse problem and strongly recommended referral to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP). 14. On 9 July 1993, the battalion commander recommended approval of the separation under the provisions of AR 635-200, paragraph 14-12b, patterns of misconduct with a general, under honorable conditions discharge. He further recommended that rehabilitative efforts be waived, as they would not produce a quality Soldier. 15. The separation authority approved the recommended discharge and directed the applicant be issued a general, under honorable conditions discharge. He waived any further rehabilitative efforts and stated the applicant would not be transferred to the Individual Ready Reserve (IRR). 16. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 16 July 1993, under the provisions of AR 635-200, paragraph 14-12b, by reason of Misconduct-Pattern of Misconduct, in the rank/grade of specialist (SPC/E-4), and his service was characterized as under honorable conditions (general). This form also shows: a. He completed 2 years, 11 months, and 29 days of net active service during the covered period. b. He was awarded the Army Service Ribbon, National Defense Service Medal, Southwest Asia Service Medal, Expert Marksmanship Qualification Badge with Hand Grenade Bar, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16). c. He received a separation code of "JKM" and a re-entry code of "3." 17. VA documents, dated 8 October 2021, shows the applicant's evaluation for PTSD increased based on a current evaluation that his condition worsened. The VA examiner stated that the applicant's diagnosis changed from PTSD to PTSD with depression due to chronic pain with mixed features. VA assigned a 70% evaluation for PTSD based on: * Anxiety * Chronic sleep impairment * Depressed mood * Difficulty in adapting to a work like setting * Difficulty in adapting to stressful circumstances * Difficulty in adapting to work * Difficulty in establishing and maintaining effective work and social relationships * Disturbances of motivation and mood * Flattened affect * Inability to establish and maintain effective relationships * Near-continuous depression affecting the ability to function independently, ap effectively * Near-continuous panic affecting the ability to function independently, appropriately, and effectively * Occupational and social impairment with reduced reliability and productivity 18. There is no indication the applicant applied to the Army Discharge Review Board for review of his discharge processing within that Board’s 15-year statute of limitations 19. Regulatory guidance states, when an individual is discharged under the provisions of Chapter 14, AR 635-200 for a pattern of misconduct, an under other than honorable conditions characterization of service is normally appropriate. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 20. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. 21. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his characterization of service from under honorable conditions (general) to honorable. He asserts he was experiencing PTSD, which mitigates his misconduct. b. 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 in the Regular Army on 18 July 1990; 2) The applicant was counseled multiple times between March 1992-March 1993 for his failure to pay debts and writing dishonored checks; 3) The applicant was discharged on 16 July 1993, Chapter 14-12b. His service was characterized as under honorable conditions (general). c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and medical records. The VA’s Joint Legacy Viewer (JLV) was also examined. d. The applicant asserts he was experiencing PTSD that mitigated his misconduct. The applicant underwent a mental status evaluation on 9 July 1993 for the purpose of separation. The applicant was diagnosed with alcohol abuse, episodic, and it was strongly recommended he attend the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP). A review of JLV provided evidence the applicant has been seen by the VA for insomnia, nightmares, alcohol dependence, adjustment disorder, PTSD, and depression since October 2016. The applicant receives 70% service-connected disability for PTSD since 08 October 2021. e. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is insufficient evidence to support the applicant had condition or experience that mitigated his discharge. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he was experiencing PTSD that contributed to his misconduct. (2) Did the condition exist, or experience occur during military service? Yes, the applicant contends his PTSD occurred while on active service. In addition, he has been diagnosed with service-connected PTSD by the VA. (3) Does the condition or experience actually excuse or mitigate the discharge? No, there is sufficient evidence the applicant was experiencing a mental health condition while on active service. However, there is no nexus between PTSD and the applicant’s misconduct given that: 1) failure to pay debts and writing dishonored checks are not part of the natural history or sequelae of PTSD; 2) PTSD do not affect one’s ability to distinguish right from wrong and act in accordance with the right. However, the applicant contends his PTSD resulted in his misconduct, and per the Liberal Consideration Policy, his contention is sufficient for consideration. BOARD DISCUSSION: 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. The applicant was discharged from active duty due to Misconduct- patterns of misconduct. The Board reviewed and concurred with the medical advisor’s finding that there was evidence the applicant was experiencing a mental health condition while on active service. However, there is no nexus between PTSD and the applicant’s misconduct given that: failure to pay debts and writing dishonored checks are not part of the natural history or sequelae of PTSD, and PTSD does not affect one’s ability to distinguish right from wrong and act in accordance with the right. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that 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, 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. Army Regulation 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. The honorable characterization is appropriate when the quality of the Soldier'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 used for 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, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. 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 considered appropriate. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 3. AR 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, provided that enlisted Soldiers separated under the provisions of AR 635-200, paragraph 14-12b for Misconduct-Pattern of Misconduct would receive a separation code of "JKM." 4. Army Regulation 635-5 (Separation Documents), table 2-3 provided an re-entry code of "3" was assigned to enlisted Soldiers who received a separation code of "JKM." 5. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Table 3-1 provides a list of RE codes. * RE code "1" applies to Soldiers completing their term of active service, who are considered qualified for enlistment if all other criteria are met * RE code "2" is no longer in use but applied to Soldiers separated for the convenience of the government, when reenlistment is not contemplated, who are fully qualified for enlistment/reenlistment * RE code "3" applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, whose disqualification is waivable; they are ineligible unless a waiver is granted * RE code "4" applies to Soldiers separated from last period of service with a non- waivable disqualification 6. 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; TBI; sexual assault; sexual harassment. Boards were directed 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 that misconduct which led to the discharge. 7. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records 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. This guidance does not mandate relief but provides standards and principles to guide Boards in application of their equitable relief authority. a. 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. 8. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220006212 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1