IN THE CASE OF: BOARD DATE: 16 March 2023 DOCKET NUMBER: AR20220007642 APPLICANT’S REQUEST: an upgrade of his characterization of service from under honorable conditions (general) to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Two DD Forms 214 (Certificate of Release or Discharge from Active Duty) * Post-traumatic Stress Disorder (PTSD) Nexus Statement and Rationale * Department of Veterans Affairs (DVA) Rating Decision * DVA Benefits letter 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 had 13 years of honorable service, served his country in a combat zone, and received many medals, including the Bronze Star. He saw so many terrible things in Kuwait in 1990 and 1991 that it affected his life in a terrible way. He has been divorced three times because of his anxiety and suicide attempts. He tried to get mental health counseling while serving in the military but was advised not to because it would have an adverse impact on his security clearance and career. He was finally diagnosed with PTSD in 2022 and realizes now that his misconduct was a way to escape the pain, anxiety, and isolation he was experiencing as a result of his PTSD. He did everything his country asked of him but lost his way due to all the sacrifices and separations from his family. After receiving punishment for stealing from the Army and Air Force Exchange Services (AAFES) Post Exchange, he voluntarily resigned his commission. Not a day goes by that he does not wish he could go back in time and change this dishonorable action. 3. On 8 September 1983, the applicant enlisted in the U.S. Army Reserve (USAR) for a period of six years as a cadet in USAR Control Group (Reserve Officers' Training Corps (ROTC)) in order to participate in the ROTC program at Florida Southern College, Lakeland, FL. 4. The applicant was appointed as a Reserve Commissioned Officer of the Army in the rank/grade of second lieutenant/O-1, effective 24 December 1985. He entered active duty on 8 February 1986 and was promoted to the rank/grade of captain (CPT)/O-3 effective 1 July 1990. 5. The applicant requested to be released from active duty (REFRAD) under the provisions of the Fiscal Year 1995 Army Officer Voluntary Separation Incentive Program (VSIP). On 1 November 1994, his request was approved. His DD Form 214 for this period shows he was REFRAD on 1 June 1995 with an honorable characterization of service. He served in Kuwait for an unspecified period and was awarded, in part, the Bronze Star Medal, Southwest Asia Service Medal with two Bronze Service Stars, and the Kuwait Liberation Medal. As conditions of his VSIP agreement he was paid $8562.62 and incurred an obligation to serve in the USAR for a period of 18 years. 6. The applicant was ordered to active duty in the rank of CPT as an obligated volunteer officer for a period of 3 years. He was assigned to Military Traffic Management Command – Southwest Asia/Saudi Arabia, Kuwait with a reporting date of 30 April 2000. 7. The applicant's DA Form 67-9 (Officer Evaluation Report (OER)) rendered for the period 4 December 2001 through 5 February 2002 shows he was relieved for cause from his principal duty as Detachment Commander. The catalyst for this action was his failure to correctly complete a leave form to indicate that he would be travelling to Colombia, South America, and to obtain the necessary theatre and country clearances required for travel. He appealed this OER on 5 August 2002. On 10 October 2002, the applicant was notified that his appeal was denied by the Officer Special Review Board. 8. On 4 September 2002, the applicant was notified that he was not selected for promotion to the next higher grade for the second time. He was also informed that a subsequent Selective Continuation (SELCON) Board had recommended him for continuation in his present grade and the Secretary of the Army had approved the recommendation. As a result, he was offered a choice between accepting SELCON and continuing to serve on active duty for a 3-year period, or declining SELCON which would result in him being separated from active duty not later that the first day of the seventh month after approval of the promotion board report. Because the promotion board report was approved during the month of August 2002, he would be separated not later than 1 March 2003. The applicant elected to accept SELCON and remain on active duty. 9. A Military Police Report shows the applicant was apprehended on 5 May 2003 and charged with larceny of non-appropriated funds property in violation of Article 121 of the Uniform Code of Military Justice (UCMJ) for shoplifting $47.00 worth of merchandise from the AAFES post exchange at Camp Doha, Kuwait. 10. A DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) shows the applicant accepted General Officer level nonjudicial punishment under the provisions of Article 15, of the UCMJ, for stealing a shirt of a value of $47.00 on or about 5 May 2003. His punishment consisted of forfeiture of $2,368.00 for one month, suspended, to be automatically remitted if not vacated on or before 19 July 2003. 11. The available record is void of the complete facts and circumstances surrounding the applicant's separation. However, orders, his DD Form 214, and his DD Form 215 (Correction to DD Form 214), show the applicant was discharged from active duty on 27 June 2003 in the rank/grade of CPT/O-3. He was credited with completion of 3 years, 4 months, and 2 days of net active service this period. His DD Form 214 shows in: a. block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) – He was awarded or authorized the: * Bronze Star Medal * Meritorious Service Medal (2nd Award) * Army Commendation Medal * Army Achievement Medal (2nd Award) * Meritorious Unit Commendation * National Defense Service Medal (2nd Award) * Korean Service Medal * Armed Forces Expeditionary medal * Southwest Asia Service Medal * Army Service Ribbon * Overseas Service Ribbon * Kuwait Liberation Medal * Kuwait Liberation Medal (Kuwait) * Parachutist Badge b. block 24 (Character of Service) - His characterization of service was Under Honorable Conditions (General). c. block 25 (Separation Authority) - The authority for his separation was Army Regulation 600-8-24 (Officer Transfers and Discharges), Paragraph 3-5. d. block 26 (Separation Code) - His Separation Program Designator Code was "FND." e. block 27 (Reentry Code) - His Reentry Eligibility (RE) Code was "NA" [Not applicable]. f. block 28 (Narrative Reason for Separation) - The narrative reason for his separation was "Miscellaneous/General Reasons." g. block 29 (Dates of Time Lost During This Period) - He had no lost time during this period. 12. The applicant's record is void of any evidence showing he was diagnosed with PTSD or any other medical or behavioral health condition during his period of service. 13. On 13 August 2013, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge based upon his offense being an isolated incident and the fact that he had over 10 years of service with no other adverse actions. On 8 November 2016, the ADRB determined that he was properly and equitably discharged. Accordingly, his request was denied. 14. The applicant provides the following documents in support of his petition; all of which are available in their entirety for the Board's consideration: a. A PTSD Nexus Statement and Rationale, dated 31 December 2021, from a forensic neuropsychologist. The psychologist states he has reviewed the applicant's service records, medical records, current wife's input, and DD Form 214. He also conducted a virtual Initial PTSD Disability Benefits Questionnaire with the applicant. He diagnosed the applicant with PTSD, most likely the result of military-related stressors. b. A DVA Rating Decision, dated 5 May 2022, which shows in part, he was granted service connection for PTSD with major depressive disorder and alcohol use disorder with an evaluation of 70 percent, effective 30 November 2021. c. A DVA Benefits letter, dated 9 May 2022, wherein the applicant is provided information and guidance about his benefits. 15. 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. 16. 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. 17. 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 contends he had PTSD, which mitigated 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) On 8 September 1983, the applicant enlisted in the U.S. Army Reserve (USAR) as a cadet in USAR Control Group (Reserve Officers' Training Corps (ROTC); 2) He entered active duty on 8 February 1986; 3) The applicant accepted a General Officer level nonjudicial punishment under the provisions of Article 15 for stealing on 5 May 2003. His punishment consisted of monetary forfeiture; 4) The available record is void of the complete facts and circumstances surrounding the applicant's separation. However, the applicant was discharged from active duty on 27 June 2003. His characterization of service was Under Honorable Conditions (General); 5) On 13 August 2013, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge, and his request was denied. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The VA’s Joint Legacy Viewer (JLV) and civilian medical records were also reviewed. d. The applicant asserts he was experiencing PTSD which mitigates his misconduct during his active service. There is no evidence the applicant reported behavioral health symptoms while on active service. The applicant provided a neuropsychological report from a civilian provider dated 31 December 2021. The applicant was diagnosed with PTSD by this provider. JLV provided evidence the applicant has been diagnosed with alcohol dependence, generalized anxiety, social phobia, obsessive-compulsive disorder, and PTSD. The applicant is 100% service-connected for PTSD since 30 November 2021. e. Based on the available information, it is the opinion of the Agency BH Advisor that the applicant has a history of behavioral health conditions. However, there is no nexus between his behavioral health conditions and theft. Kurta Questions A. Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends his symptoms of PTSD mitigate his misconduct B. Did the condition exist or experience occur during military service? Yes, the applicant reports experiencing mental health conditions while in active service, and the applicant receives service-connected disability for PTSD. C. Does the condition experience actually excuse or mitigate the discharge? No, the applicant has been diagnosed with behavioral health conditions, and he receives service-connected disability for PTSD. However, there is no nexus between his mental health conditions and theft given that: 1) this misconduct is not part of the natural history or sequelae of his mental health conditions; 2) they do not affect one’s ability to distinguish right from wrong and act in accordance with the right. However, the applicant contends 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, 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. 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 concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by PTSD. 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, U.S. Code, Section 1556, provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the 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 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. It states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR is not an investigative body and decides cases based on the evidence presented in the military records provided and the independent evidence submitted with the application. 4. Army Regulation 600-8-24, in effect at the time prescribed policy and procedure governing transfer and discharge of Army officer personnel. a. Paragraph 1-16 states an officer pending court-martial charges or investigation with a review toward court-martial will not be separated without Headquarters, Department of the Army (HQDA) approval. b. Paragraph 1-22(a) states an officer will normally receive an honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty, or the final revocation of a security clearance for reasons that do not involve acts of misconduct, for an officer. c. Paragraph 1-22(b) states an officer will normally receive an under honorable conditions characterization of service when the officer’s military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. Chapter 3 (Resignations) of the regulation prescribes the tasks, rules, and steps for processing voluntary resignations). Paragraph 3-5 (Rules for processing unqualified resignation) states any officer on active duty for more than 90 calendar days may tender a resignation except when action is pending that could result in resignation for the good of the Service; officer is under suspension of favorable actions, pending investigation, under charges; or any other unfavorable or derogatory action is pending. An officer separated under this paragraph will receive an honorable discharge or a general discharge, under honorable conditions. e. Chapter 4 (Eliminations) of the regulation prescribes the process for elimination of an officer in the Army. Paragraph 4-1 (Overview) states an officer is permitted to serve in the Army because of the special trust and confidence the President and the nation have placed in the officer’s patriotism, valor, fidelity, and competence. An officer is expected to display responsibility commensurate to this special trust and confidence and to act with the highest integrity at all times. However, an officer who will not or cannot maintain those standards will be separated. 5. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (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 under other than honorable conditions 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. 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; 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. 7. 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) AR20220007642 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1