IN THE CASE OF: BOARD DATE: 28 February 2023 DOCKET NUMBER: AR20220007315 APPLICANT REQUESTS: upgrade of his under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * Durable General Power of Attorney 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 many years ago he exhibited bad behavior related to alcohol consumption. He was told upon discharge to keep his nose clean, and he could change it. The applicant notes post-traumatic stress disorder (PTSD), and other mental health issues are related to his request. 3. The applicant enlisted in the Regular Army on 11 August 2004, for four years. His military occupational specialty was 21E (Heavy Construction Equipment Operator). He served in Iraq from 14 December 2005 through 13 December 2006. 4. The applicant was formally counseled on numerous occasions between 22 February 2005 and 3 October 2006 for the following infractions: * multiple failures to report * misplacing his assigned weapon * use of a substance in an illegal manner * urinating in public * disrespect to a noncommissioned officer (NCO) * assault of another Soldier * drunk on duty 5. The applicant was reassigned within the 62nd Engineer Battalion, Fort Hood, TX, on 19 January 2005. 6. A DA Form 2173 (Statement of Medical Examination and Duty Status) dated 30 April 2005, shows the applicant was admitted to a civilian hospital on 1 May 2005 for injury, concussion, seizures, and dizziness. The applicant fell and hit his head on concrete while wrestling with another Soldier in the barracks. The injury was considered to have been incurred in the Line of Duty (LOD). 7. A DD Form 261 (Report of Investigation Line of Duty and Misconduct Status) dated 10 July 2005, shows the LOD was approved on 8 November 2005. As part of the investigation the applicant stated, they were just messing around and he ended up getting choked out, he passed out and hit his head on the floor. 8. The applicant accepted non-judicial punishment (NJP) on 13 November 2006 at Camp Liberty, Iraq, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for unlawfully entering the female latrine on or about 27 September 2006 and wrongfully inhaling, Endust, which contains 2-Butoxyethanol, a noxious gas. His punishment consisted of reduction to private/E-1, forfeiture of $636.00 pay for two months (1 month suspended), and extra duty. 9. The applicant was formally counseled on 24 January 2007 and 27 February 2007 for indecent exposure and for not cleaning his room to standard. 10. On 29 January 2007, an evaluation appointment was set for the applicant at the Substance Abuse Rehabilitation Department, Army Substance Abuse Program for 11 April 2007. 11. The applicant accepted NJP on 12 April 2007, under the provisions of Article 15 of the UCMJ, for willfully and wrongfully exposing his naked body in the barracks, on or about 16 January 2007. His punishment consisted of forfeiture of $650.00 pay for two months and extra duty. 12. A Report of Mental Status Evaluation, dated 18 June 2007, shows the applicant was referred for evaluation for administrative separation. The examining psychologist determined there was no psychiatric disease or defect that warranted disposition through medical channels. He was psychiatrically cleared for administrative proceedings. 13. The applicant's immediate commander notified him on 20 June 2007, of his intent to initiate separation actions against him, under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), Chapter 14, for misconduct – pattern of misconduct. As the reasons his commander noted, the applicant's misconduct and recommended he receive a general characterization of service. 14. The applicant consulted with legal counsel on 21 June 2007 and was advised of the basis for the contemplated actions to separate him and of the rights available to him. He waived his right for consideration of his case by an administrative separation board and waived personal appearance before a board. He understood that he might expect to encounter substantial prejudice in civilian life. He elected not to submit a statement in his own behalf. 15. The applicant's commander formally recommended the applicant's separation, under the provisions of AR 635-200, Chapter 14, for acts or patterns of misconduct. The separation authority approved the recommended separation action on 22 June 2007 and directed the applicant's service be characterized as general, under honorable conditions. 16. The applicant was discharged on 18 July 2007. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, paragraph 14-12b, by reason of pattern of misconduct. His characterization of service was under honorable conditions (general) (Separation Code JKA, Reentry Code 3). He completed 2 years, 11 months, and 8 days of net active service. He was awarded or authorized the: National Defense Service Medal, Global War on Terrorism Service Medal, Iraq Campaign Medal, Army Service Ribbon, and the Driver and Mechanic Badge with Mechanic Bar. 17. On 3 October 2022, a staff member at ARBA emailed the applicant to provide a copy of the medical documents that support his mental health issue (PTSD and alcohol). The applicant did respond, and the record is void of evidence of his PTSD diagnosis. 18. The applicant provides a Durable General Power of Attorney that shows as his attorney-in-fact to act, signed by the applicant on 25 April 2008. 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: a. The applicant is applying to the ABCMR requesting an upgrade of his under honorable conditions (general) discharge. 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) Applicant states many years ago he exhibited bad behavior due to alcohol use. He notes PTSD and other mental health conditions related to his request. (2) He enlisted in the RA on 11 August 2004 and served in Iraq from 14 December 2005 through 13 December 2006. (3) He was formally counseled on multiple occasions between 22 February 2005 and 3 October 2006 for multiple failures to report; misplacing assigned weapon; illegal substance use; urinating in public; disrespect to an NCO; assault of another soldier; drunk on duty. (4) Statement of Medical Examination and Duty status dated 30 April 2005 shows he was admitted to a civilian hospital 1 May 2005 after hitting his head while wrestling with another soldier in barracks. Symptoms included concussion, seizures, and dizziness. Injuries were considered LOD. The LOD was approved 8 November 2005. During the investigation applicant reported he got choked out/passed out and hit his head on the floor. (5) He accepted NJP on 13 November 2006 at Camp Liberty, Iraq for unlawfully entering female latrines and wrongfully inhaling Endust which contains a noxious gas. (6) He was formally counseled on 24 January 2007 and 27 February 2007 for indecent exposure and not cleaning his room to standard. (7) He accepted NJP on 12 April 2007 for wrongfully and willfully exposing his naked body in the barracks. (8) A Report of Mental Status Evaluation dated 18 June 2007 shows he was referred for evaluation for administrative separation. Examining psychologist deemed him free of psychiatric disease warranting medical disposition, and he was cleared for administrative action. (9) He was notified on 20 June 2007 by his immediate commander of intent to separate under AR 635-200 Chapter 14, patterns of misconduct. (10) He was discharged on 18 July 2007 under AR 635-200 paragraph 14-12b, patterns of misconduct, general under honorable conditions. (11) Applicant did not respond to communication from ARBA requesting medical documents supporting PTSD and other mental health issues. c. Supporting Documents All supporting documents reviewed. Lack of citation or discussion in this section should not be interpreted as lack of consideration. DD Form 149 references PTSD and possibly other mental health conditions associated with application. Many of the supporting documents pertain to his initial enlistment and the LOD investigation described in the ROP. There is also significant documentation associated with his disciplinary history. Report of Mental Status Evaluation dated 18 June 2007 was unremarkable with no diagnosis rendered; he was deemed to meet medical retention standards per AR 40-501 and cleared for administrative proceedings. d. AHLTA The Army electronic medical record, AHLTA, was reviewed. There is no evidence of any mental health or related contacts prior to deployment or while in theater (although given the time frame the latter likely may not have populated into AHLTA). He was first evaluated for substance abuse concerns on 29 January 2007, although details in AHLTA are limited. He appears to have participated in primarily group treatment (approximately weekly in general) through 25 June 2007 again with limited details or diagnostic information. His only contact with other mental health related services appears to be his Mental Status Evaluation for Chapter 14 separation described in the ROP (18 June 2007). e. JLV Available VA records were reviewed via JLV. Records indicate applicant has no service-connected conditions. The comments below are not exhaustive of all contacts but provide relevant history/summary. He appears to have intermittent mental health care over time. He was evaluated in Primary Care Behavioral Health on 5 April 2013 due to anxiety symptoms and was diagnosed with Anxiety Disorder, Not Otherwise Specified; the evaluating provider opined that previous stress associated with being in a combat zone, being severely choked, and the death of his father were contributory to anxiety. Psychiatry consult dated 17 May 2013 references significant anxiety and past diagnosis of ADHD with use of stimulant prior to military; applicant was diagnosed with ADHD, depressive disorder not otherwise specified, and panic disorder without agoraphobia. TBI Second Level Evaluation dated 22 July 2013 indicated no significant TBI during deployment but had a pre-enlistment concussion and a situation in which he was “choked out” during an altercation with another service member, both of which may have resulted in the “possibility of mild TBI sequelae.” Evaluation references possible ADHD diagnosis as a teen prior to enlistment. Symptoms of concern at the time of the TBI evaluation “more related to his mental health” than TBI. He contacted the Veterans Crisis Line on 21 August 2016 due to suicidal ideation without intent, employment struggles, and substance use (drinking to cope with stress). A psychiatric evaluation of 28 November 2018 indicates applicant met diagnostic criteria for PTSD secondary to combat in Iraq due to avoidance, hypervigilance, intrusive recollections of trauma, and anger. Psychiatry note of 6 December 2019 references a recent discharge from a 2- month rehabilitation program for alcohol abuse and resulted in diagnoses of Major Depressive Disorder, Mild; PTSD; and Generalized Anxiety Disorder. Behavioral Health Treatment Plan dated 14 October 2022 indicated housing instability and risk of homelessness; had been evicted September 2022 for nonpayment of rent and overall context of significant debt. Ongoing homelessness was expressed as a concern on 19 December 2022, noting applicant’s lack of engagement and lack of progress in finding housing; he appears to have been living in a shelter at the time. f. Other Query of HAIMS did not return any documents for this applicant. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant asserts PTSD and possibly other mental health conditions associated with the circumstances of his discharge. (2) Did the condition exist or experience occur during military service? Yes. The applicant has subsequently been diagnosed with multiple mental health conditions including PTSD secondary to combat deployment, anxiety, and depression by the VA (not service connected). There is also evidence of possible mild TBI and substance misuse at the time of service and a pre-enlistment history of ADHD. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The applicant has a complicated disciplinary history over time eventually leading to his discharge for patterns of misconduct. Even under the most liberal of considerations and erring on the side of caution with benefit given to the service member, there is only enough evidence to support partial mitigation of offenses. Presumed PTSD secondary to service in Iraq would not mitigate any offenses prior to deployment, although it would mitigate avoidance behaviors such as failure to report and verbally disrespectful behaviors following exposure to potential trauma (under liberal consideration guidelines, a reasonable point of delineation would be the start date of his deployment in December 2005 since no specific single event index trauma is noted); both avoidance behaviors and disrespect to authority figures are often associated with PTSD. PTSD, mild TBI and depression/anxiety would mitigate substance misuse after the onset of these conditions, as self-medication of symptoms is often seen as part of the natural course of such conditions. History of ADHD mitigates offenses associated with distractibility and poor focus/concentration to include misplacing his assigned weapon although the BH advisor appreciates the severe and problematic nature of this offense. Possible TBI (presumed onset of 30 April 2005) would not mitigate any offenses prior to this date (e.g., drunk on duty of 22 February 2005). However, and perhaps most importantly, none of the various conditions that may have been present at the time of his service mitigate multiple disciplinary issues in his record to include urinating in public, assault, entering the female latrine, or indecent exposure. Given the totality of the circumstances over time and available data, a discharge under honorable conditions (general) appears proper and equitable. 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 – pattern of misconduct and he received a general discharge. The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board agreed that none of the various conditions that may have been present at the time of his service mitigate the multiple disciplinary issues in his record to include urinating in public, assault, entering the female latrine, or indecent exposure. 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. 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. 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. Chapter 14 of this regulation 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. 4. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Boards for Correction of Military/Naval Records (BCM/NRs), on 3 September 2014, to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions (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. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, TBI, sexual assault, or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on 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. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 6. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service DRBs and Service BCMR/NRs on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCMR/NRs 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) AR20220007315 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1