IN THE CASE OF: BOARD DATE: 20 January 2023 DOCKET NUMBER: AR20220006698 APPLICANT REQUESTS: His previously upgraded under honorable conditions (general) discharge be further upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Forms 293 (Application for the Review of Discharge) (two) * Service and Treatment Records * Department of Veterans Affairs (VA), Ratings Decision Letter, dated 16 September 2011 * VA Compensation and Pension Exam * VA Medical Record * Docket Number, on 6 January 2022 * Memorandum for Secretaries of Military Departments, Clarifying Guidance also known as the Kurta Memo, dated 25 August 2017 * VA Form 21-4138 (Statement in Support of Claim), dated 25 March 2022 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 on his VA Form 21-4138: a. His unit had a tough deployment to Iraq from 2004 until 2005. They patrolled the most dangerous route in Iraq and was under constant attack from rocket propelled grenades, snipers, and small arms fire. He feared for his life daily, had trouble sleeping and developed anxiety and depression. b. He now suffers from symptoms of post-traumatic stress disorder (PTSD) and has hypersensitivity to loud noises, nearly constant anxiety and depression, suicidal thoughts, panic attacks, sweating, heart racing, ringing in my ears, dry mouth, headaches, insomnia, anger issues, back pains, and paranoia. He has no control over these symptoms which affect him constantly. He was referred to a VA medical hospital in. He started receiving mental health therapy with a psychologist and a psychiatrist and was formally diagnosed with PTSD in 2008. c. PTSD has affected his work and personal life. He ruins all his relationships, because he is not affectionate enough or too depressed to be bothered. He has lost jobs for not getting along with coworkers and supervisors. He finds it hard to concentrate and is often homeless because his family and others are afraid to be around him. Medication does not help his severe depression, anxiety, panic attacks, obsessive compulsive disorder, or paranoia. On his application, the applicant notes traumatic brain injury (TBI) is related to his request. 3. The applicant's service record shows: a. On 13 November 2003, the applicant enlisted in the Regular Army for a 3-year service obligation. Upon completion of his initial entry training and award of military occupational specialty (MOS) 14S (Avenger Crewmember). At some point he was assigned to Fort Hood, TX, where he attained the rank/grade of Specialist/E-4 and deployed to Iraq from on or about 21 June 2004 through 20 June 2005. b. On 15 July 2005, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for the following offenses: being disrespectful in language to a superior non-commissioned officer (NCO), on or about 23 June 2005 and willfully disobeying a lawful order from a superior NCO on or about 6 May 2005. His punishment included of a reduction to pay grade E-3 and extra duty for 14 days. c. On 21 September 2005, the applicant again accepted NJP under the provisions of Article 15 of the UCMJ, for wrongfully communicating a threat to a superior NCO; failing to go at the time prescribed to his appointed place of duty; and for making an official statement with the intent to deceive a superior NCO, on or about 8 September 2005. His punishment included a reduction to pay grade E-2, extra duty for 14 days, and restriction for 14 days. d. On 31 October 2005, the applicant was reduced to private/E-1, as a result of receiving a Field Grade Article 15, however the DA Form 2627 (Record of Proceeding Under Article 15, UCMJ) is not available for review. e. On 31 March 2006, the applicant underwent a mental status examination. His DA Form 3822-R (Report of Mental Status Evaluation) shows the evaluating Psychologist determined he had the mental capacity to understand and participate in board proceedings; was mentally responsible; and met retention standards. The psychologist noted, the applicant was evaluated.by the Army Community Hospital pursuant to regulatory guidance. The evaluation revealed no evidence of altered, thought process or any other mental health condition that would explain the behavior that resulted in the initiation of the administrative action. The Soldier denied suicidal and homicidal Ideation and was psychologically cleared for any administrative action deemed appropriate by command. f. On 3 April 2006, the applicant again accepted NJP under the provisions of Article 15 of the UCMJ, for wrongfully using marijuana between on or about 22 February 2006 and 22 March 2006. His punishment included 45 days of extra duty. g. On 25 July 2006, court-martial charges were preferred against the applicant, for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with: * willfully disobeying a lawful command from his superior NCO, on or about 5 April 2006 * willfully damage government property on or about 22 March 2006 * wrongfully using marijuana between on or about 6 April 2006 and 5 May 2006 * wrongfully using marijuana between on or about 21 May 2006 and 20 June 2006 * stealing the property of the Army Air Force Exchange Service [gasoline], on or about 4 April 2006 h. On 16 August 2006, the applicant consulted with counsel and acknowledged receipt of the proposed separation notification memorandum. He was advised of the rights available to him and elected not to submit a statement in his own behalf. He also 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 refer the above charges to a Summary Court Martial. i. On 29 August 2006, the applicant underwent another mental status examination. His DA Form 3822-R shows the evaluating License Clinical Social Worker determined he had the mental capacity to understand and participate in board proceedings; was mentally responsible; and met retention standards. The examining official noted the applicant was evaluated pursuant to regulatory guidance. The evaluation revealed no evidence of suicidal or homicidal behavior, altered thought process or any other mental health condition that would explain the behavior that resulted in this administrative action. He was diagnosed with an occupational problem and psychologically cleared for any administrative action deemed appropriate by command. j. The applicant's commander accepted his plea offer. Subsequently, he was tried by summary court-martial on 30 August 2006, and sentenced to 30 days confinement and forfeiture of $849 for one month. Subsequently, the convening authority approved and executed the sentence. k. On 30 August 2006, the applicant's commander also 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. As the specific reasons, his commander cited the applicant's conviction through Summary Court Martial, two previous NJPs for disrespect and disobeying lawful orders and two previous NJPs for drug use. He was recommending the applicant receive an UOTHC discharge. The applicant previously consulted with counsel and acknowledged receipt of the proposed separation notification on 16 August 2006. l. On 30 August 2006, 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. m. On 14 September 2006, he underwent a separation examination. The examining provider noted he was being treated for a sexually transmitted disease and he was qualified for separation. n. On 28 September 2006, the separation authority approved the applicant's discharge and directed he be separated with an UOTHC discharge. o. On 12 October 2006, the applicant was discharged accordingly. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (Drug Abuse). His service was characterized as UOTHC. He was credited with completing 2 years and 11 months of net active service. He was awarded or authorized the Global War on Terrorism Service Medal, National Defense Service Medal, Iraq Campaign Medal, and the Army Service Ribbon. 4. On 14 October 2020, the Army Discharge Review Board (ADRB) determined his discharge was inequitable based on the applicant’s length of service, including combat service, and the circumstances surrounding the discharge (PTSD diagnosis). Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to under honorable conditions (general). His DD Form 214 was voided, and he was issued a new DD Form 214 with an under honorable conditions (general) characterization. 5. The applicant applied to the ADRB for a further upgrade of his general discharge. On 6 January 2022, the Board denied his request and found his separation was both proper and equitable. 6. The applicant provides his entire service and treatment record, VA Ratings Decision Letter, VA Compensation and Pension Exam and Medical Record, the petition he submitted in ADRB Docket Number AR20210003304, Kurta Memo, and VA Form 21- 4138, in support of his request. 7. Published guidance to the Boards for Correction of Military/Navy Records (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. 8. 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 an upgrade of his 12 October 2006 discharge characterized as under honorable conditions (general). b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s reissued DD 214 (23 December 2020) for the period of service under consideration shows he entered the regular Army on 13 November 2003 and was discharged on 12 October 2006 under the separation authority provided by paragraph 14-12c(2) of AR 635-200, Personnel Separations – Enlisted Personnel (6 June 2005): Commission of a serious offense. c. The first request for a discharge upgrade was granted by the ADRB on 20 October 2020 and his characterization of service was changed from under other than honorable conditions to under honorable conditions (general). His second request for a discharge upgrade to honorable was denied by the ADRB on 2 March 2022. The Board is referred to the ROP and medical advisory for this case. This review will focus on new evidence submitted by the applicant. d. From the ROP for Basis for Separation: Under the provisions of AR 635-200, Chapter 14-12c, Commission of a Serious Offense, the applicant was informed of the following reasons: The applicant was convicted through Summary Court Marital on 30 August 2006 for disobeying a superior commissioned officer (Article 90), Damaging Government Property (Article 108), illegal use of marijuana x2 (Article 112a), and stealing gasoline from AAFES (Article 121). Service Member has received two previous company grade Article 15s (disrespect and disobeying lawful orders) and two previous field grade Article 15s (both for drug use) …” “The Board’s Medical Advisor opined that applicant's discharge is partially mitigated by applicant’s PTSD owing the nexus between PTSD and difficulty with authority figures, and substance use. Applicant’s PTSD mitigates applicant’s disobeying a superior commissioned officer and multiple incidents of marijuana use, however, PTSD does not mitigate applicant’s damaging government property or stealing gasoline since PTSD does not interfere with one’s ability to distinguish between right and wrong and act in accordance with the right, therefore applicant’s PTSD does not fully mitigate the basis for applicant’s separation.” e. New medical documentation submitted with this application is a mixture of Army and VA documentation. It, along with a review of his records in JLV, continues to show the applicant has been diagnosed with PTSD and adjustment disorder. As noted in the prior case, his PTSD only partially mitigates the actions which led to his discharge as it cannot mitigate the UCMJ violations of damaging government property or stealing. Kurta Questions: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? YES: PTSD (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 a nexus between PTSD and difficulty with authority figures, and self-medicating with illicit substances, his PTSD mitigates the acts of disobeying a superior commissioned officer, disrespect, disobeying lawful orders, and multiple incidents of marijuana use. PTSD does not mitigate applicant’s damaging government property or stealing gasoline since PTSD does not interfere with one’s ability to distinguish between right and wrong and act in accordance with the right. 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 due to misconduct - commission of serious offense. The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant had PTSD. As there is a nexus between PTSD and difficulty with authority figures, and self- medicating with illicit substances, his PTSD mitigates the acts of disobeying a superior commissioned officer, disrespect, disobeying lawful orders, and multiple incidents of marijuana use. However, PTSD does not mitigate applicant’s damaging government property or stealing gasoline since PTSD does not interfere with one’s ability to distinguish between right and wrong and act in accordance with the right. 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. Title 10, U.S. Code, 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. 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) AR20220006698 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1