IN THE CASE OF: BOARD DATE: 27 January 2023 DOCKET NUMBER: AR20220006356 APPLICANT REQUESTS: Upgrade of his under honorable conditions (general) discharge, and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) * DA Forms 4856 (Developmental Counseling Form) * DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) * DD Form 2807-1 (Report of Medical History) * DD Form 2679 (Report of Medical Assessment) * DA Form 3349 (Physical Profile) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (DVA) Rating Decisions (three) * Statements in support of his DVA disability claim (19) * DVA Medical Records extract * Prescription Medications * Bank Statement FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. 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 was injured when he had a bad landing during an airborne operation that left him more damaged than he realized until it manifested in the behavior that led to his discharge. It affected his mental state and got worse as time passed. He believes his discharge should be upgraded based upon recent changes to give liberal consideration for Soldiers who sustained a Traumatic Brain Injury (TBI) or other mental health disabilities. The DVA has currently rated him as 50 percent (%) disabled for tension headaches and 70% for mental depression. 3. Following a period of honorable service in the New York Army National Guard, on 26 April 2005, the applicant enlisted in the Regular Army for a period of 3 years and 13 weeks. Upon completion of Advance Individual Training and Airborne School, he was assigned to a unit at Fort Bragg, NC. He was promoted to the rank/grade of private first class (PFC)/E-3 on 1 May 2005. 4. DA Forms 4856 show the applicant was formally on 24 August 2005 and 26 September 2005 for failure to go at the time prescribed to his appointed place of duty. 5. On 27 September 2005, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty on or about 24 August 2005 and on or about 26 September 2005 (twice). His punishment consisted of 14 days of extra duty and restriction. 6. The applicant was formally counseled on the following dates for: * 11 October 2005 – failure to report to his appointed place of duty, a unit urinalysis * 3 November 2005 – failure to obey a lawful order from a noncommissioned officer (NCO) * 4 January 2006 – failure to go at the time prescribed to his appointed place of duty * 17 January 2006 – failure to go at the time prescribed to his appointed place of duty, a unit-wide urinalysis * 1 February 2006 – failure to go at the time prescribed to his appointed place of duty, a unit-wide urinalysis 7. On 2 February 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), Chapter 14, for a pattern of misconduct. The specific reasons for this action were the applicant's receipt of NJP and multiple acts of misconduct. He advised the applicant he was recommending that he receive a General discharge. 8. The applicant 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 representation by counsel and elected to submit statements in his own behalf. 9. The applicant was counseled twice on 6 February 2006 for failure to go at the time prescribed to his appointed place of duty. 10. On 6 February 2006, the applicant accepted NJP under the provisions of Article 15 of the UCMJ, for failing to go at the time prescribed to his appointed place of duty on two occasions. His punishment consisted of reduction to E-2, forfeiture of $333.00, 14 days of extra duty, and 14 days of restriction. 11. The applicant underwent a pre-separation medical examination on 8 February 2006. a. His DD Form 2807-1 shows he self-reported experiencing: * Recurrent back pain * Foot trouble * Knee trouble * Stomach, liver, intestinal trouble, or ulcer * Sexually transmitted disease * Frequent or severe headache * A head injury, memory loss or amnesia * Prolonged bleeding * Pain or pressure in the chest * Frequent trouble sleeping * Receiving counseling * Feeling depressed and worrying excessively * He attributed his back, head, knee, ankle, and sleep conditions to injuries sustained during an airborne operation while wearing full combat equipment b. His DD Form 2697 shows he attributed his back, head, knee, ankle, shoulder, elbow, sleep, and memory loss conditions to injuries sustained during an airborne operation while wearing full combat equipment. c. His DD Form 2808 shows the examining physician determined he was qualified for service and/or administrative separation. 12. On 27 February 2006, the applicant underwent a mental status evaluation. The examining psychiatrist determined the applicant: * was mentally responsible for his behavior * could distinguish right from wrong * possessed sufficient mental capacity * displayed no evidence of an emotional or mental disorder of psychiatric significance to warrant disposition through medical channels * was psychiatrically cleared for an administrative action as deemed appropriate by Command 13. 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 a pattern of misconduct. 14. On 16 March 2006, the separation authority approved the recommended discharge and directed the applicant be issued a General Discharge Certificate. 15. Orders and the applicant's DD Form 214 shows he was discharged on 4 April 2006. His DD Form 214 shows, in: (1) block 12 (Record of Service) – He completed 11 months and 9 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 Service Medal, Army Service Ribbon and Parachutist Badge. (3) block 18 (Remarks) – He did not complete his first full 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, Paragraph 14-12b. (6) block 26 (Separation Code) - His Separation Program Designator Code was "JKA." (7) block 27 (Reentry Code) - His Reentry Eligibility (RE) Code was "3." (8) block 28 (Narrative Reason for Separation) - The narrative reason for his separation was "Pattern of Misconduct." 16. The applicant's record is void of evidence and he has not provided any evidence which shows he was diagnosed with PTSD or any other medical or behavioral health condition during this period of service. 17. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge. By letter, dated 7 March 2007, the ADRB determined he was properly and equitably discharged. Accordingly, his request for a change in the characterization of his service was denied. 18. The applicant provides the following documents which are available in their entirety for the Boards consideration. a. A DVA Rating Decision, dated 23 August 2016, which shows service connection for lumbosacral strain (previously rated as low back pain) was granted with an evaluation of 20%, effective 22 January 2016. b. A DVA Rating Decision, dated 10 September 2019, which shows his evaluation of tension headaches was increased from 0 to 30% effective 27 February 2019. A decision on entitlement to compensation for plantar fasciitis was deferred. His combined rating evaluation was as follows: * 70% effective 22 January 2016 * 90% effective 30 May 2017 * 90% effective 27 February 2019 c. A DVA Rating Decision, dated 16 September 2019, shows service connection for plantar fasciitis was denied and his compensation payment would continue unchanged. d. Nineteen statements rendered by friends and family in support of his DVA disability claims. e. Medical documents from the Manhattan DVA Hospital, New York Harbor Healthcare System show the applicant was evaluated and/or treated for, in part: * Neck pain * Acute bilateral low back pain * Post-traumatic stress disorder (PTSD) * Seizure disorder * Neuropathies * Epilepsy * Major Depressive disorder f. Seven pages depicting the various medications he has been prescribed. g. A Capital One bank statement for April 2019 shows his total ending balance in all accounts was $ 0.35. h. An envelope addressed to him from the 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. 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. 21. 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 26 April 2005 and was discharged under honorable conditions (general) on 4 April 2006 under the separation authority provided by paragraph 14-12b of AR 635-200, Personnel Separations – Enlisted Personnel (1 November 2000): Pattern of Misconduct. It does not show a period of service in a hazardous duty pay area. c. The applicant received numerous negative counseling statements and two Article 15’s for failure to repair. d. On 2 February 2006, 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. e. The applicant underwent a mental status evaluation on 7 February 2006. The psychiatrist 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. f. The recommended separation action was approved by the battalion commander on 16 March 2006. g. 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? Yes: As there is an association between depression and avoidant behaviors, there is a nexus between the applicant’s diagnosed mental health condition and his multiple incidents of failure to repair. 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 claim regarding his mental health and the review and conclusions of the ARBA Medical 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, while the Board concurred with the conclusion of the medical advising official regarding his misconduct being mitigated by depression, the Board found the evidence does not support upgrading his character of service to fully honorable. 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 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. 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 by a preponderance of the evidence. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 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 "JKA" is an appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 14, Paragraph 14-12b, by reason of Misconduct. Additionally, the SPD/RE Code Cross Reference Table established that RE code "3" 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) AR20220006356 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1