IN THE CASE OF: BOARD DATE: 17 February 2023 DOCKET NUMBER: AR20220007878 APPLICANT REQUESTS: reconsideration of his previous request to upgrade his characterization of service from under honorable conditions (general) to honorable and a personal appearance hearing before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), 25 April 2022 * Several Newspaper Articles * Permanent Orders Number 188-013, 7 July 2007 * Department of Veteran Affairs Veterans Benefits Administration Regional Office, 22 October 2021 * Enlisted Record Brief * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100008549 on 12 October 2010. 2. The applicant states the Army had an unwritten policy that prevented Soldier’s from seeking mental help. Leadership would use intimidation and severe punishment. The unit doctors would falsify post-traumatic stress disorder (PTSD) screening questionnaires or use intimidation to stop any further follow-ups. While in Iraq, many of the Soldiers had PTSD symptoms but they were denied counseling, or their issues were ignored. He finished his tour in Iraq and after returning to Fort Carson, CO it was evident that treatment was not available to anyone in his unit. He attached a few news articles about his specific platoon sergeant speaking about denying Soldiers in his platoon from seeking help. News articles about his unit, division, and base reporting that mental health is prevented. News articles about a Soldier in his platoon that tried to get help and was imprisoned. There is also a CBS 48 hours documentary. 3. On 20 September 2006, the applicant enlisted in the Regular Army. He completed training and was awarded the MOS 11B (Infantryman). He served in Iraq from 8 May 2007 to 28 February 2008. 4. On 13 August 2008, his unit reported him in an absent without leave (AWOL) tatus and on 13 September 2008, he was dropped from the rolls as a deserter. He ultimately returned to military control on 18 May 2009. 5. On 17 June 2009, he accepted nonjudicial punishment for being AWOL from 13 August 2008 to 18 May 2009. His punishment included reduction to the rank grade of private (PVT)/E-1 and extra duty for 45 days. 6. On 28 May 2009, the applicant was notified by his unit commander that separation action was being initiated against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, commission of a serious offense, with an under other than honorable conditions discharge. The specific reason for the applicant's elimination recommendation was for being AWOL from 13 August 2008 to 18 May 2009. 7. On the same date the applicant acknowledged receipt of the proposed action against him and consulted with legal counsel. He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights. Subsequent to receiving this counseling, the applicant completed his election of rights by waiving his right to have his case considered by an administrative separation board and he declined to submit statements in his own behalf. 8. On 29 May 2009, the applicant underwent a mental status evaluation wherein he stated he briefly sought mental health treatment in August 2008. He presented with an unremarkable mental status evaluation, denied suicidal and homicidal ideations. The military physician stated that there was no evidence of any psychotic process and combat was not a contributing factor. He was psychologically cleared for administrative separation. 9. His commander formally initiated separation action against him under the provisions of chapter 14-12c of AR 635-200, commission of a serious offense. The commander opine that it is not feasible or appropriate to accomplish other disposition because in his opinion the Soldier has not demonstrated sufficient desire to overcome his shortcomings and be a quality member of the unit. Continued presence in the unit will reduce morale, readiness, and effectiveness. 10. His intermediate commander recommended approval with issuance of an under other than honorable conditions characterization of service. Additionally, the Brigade Judge Advocate found the separation packet legally sufficient. 11. On 2 June 2009, the separation authority approved the discharge action and ordered the applicant’s service be characterized as under honorable conditions, general. 12. The applicant was discharged on 29 June 2009. His DD Form 214 shows he was discharged under the provisions of AR 635-200, paragraph 14-12c, by reason of misconduct-serious offense, with an under honorable conditions (general) discharge. His DD Form 214 shows he completed 2 years and 4 days of active service this period. He had lost time from 20080813-20090518. He was awarded or authorized the: Army Commendation Medal, Presidential Unit Citation, National Defense Service Medal, Iraq Campaign Medal with arrowhead, Global War on Terrorism Service Medal, Army Service Ribbon, Combat Infantryman Badge, and Driver and Mechanic Badge with Driver Wheeled Vehicle Clasp. 13. On 12 October 2010, the Board denied his request for an upgrade of his discharge. a. The evidence of record shows that after the applicant received a psychiatric evaluation and there was no evidence of any psychotic process and combat was not a contributing factor. He was cleared for any administrative decision deemed appropriate by his command. b. The applicant's service record shows he received an Article 15 for going AWOL for a total of 275 days. As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel. c. Evidence of record shows the applicant's military record was satisfactory, as evidenced his receipt of numerous awards for service in a combat zone and his promotion to Specialist (E-4) during his period service, but not sufficiently meritorious to warrant an honorable discharge. His record also shows he was reduced to private (E-1) as a result of his Article 15 for being AWOL. These factors most likely contributed to his receiving an under honorable (general) conditions discharge rather than an under other than honorable which is normal for discharges for misconduct. d. The applicant provides insufficient evidence to show his mental state impaired his ability to serve (or was the cause of his going AWOL), or that he did not receive any required medical attention. Therefore, he is not entitled to an honorable discharge. 14. The applicant provides: a. A newspaper article titled, “Article, Soldiers Face Obstacles to Mental Health Services,” 4 December 2006, which shows, in part, the military promises to help Soldiers returning from Iraq and Afghanistan with emotional problems, including PTSD, but an National Public Radio investigation at one base in CO finds that Soldiers are not getting the services they need. b. A newspaper article titled, “Staring at Empty Pages: Mental Health and the U.S. Army,” 5 December 2006, which shows, in part, Soldiers who come back from Iraq and need mental healthcare and are not getting it. Sergeant said he refused to let Soldiers keep their mental health appointments. He continues to say he went to Iraq and does not have PTSD, stuff happened in Iraq, people died, he has lost two of his friends and he does not have a problem. He is sorry they died but you have to go on with life. People are trying to say they have problems, they are just blaming it on PTSD. [NPR] For instance, says some of the Soldiers who keep going to the mental health unit are the same ones who have been doing a bad job since they came back from Iraq. They show up late for formation. Sometimes they do not go to work at all. On the other hand, military studies show that when Soldiers get PTSD or other emotional disorders, they often behave in those kinds of ways, as part of their illness. But Platt says that is no excuse. He and another Sergeant say there is another reason why so many soldiers are pretending to have emotional problems: They do not want to go back to Iraq. They are trying to blame all of their life's problems on PTSD. c. Permanent Orders Number 188-013, 7 July 2007, which show the applicant was awarded the Combat Infantryman Badge, for his service on 14 June 2017, for participating in ground combat operation under enemy hostile fire to liberate Iraq in support of Operation Iraqi Freedom. d. A newspaper article titled, “KOAA omitted key details of PTSD treatment for Fort Carson Soldiers,” 15 February 2007, which shows, in part the station ignored widely reported allegations that Fort Carson Soldiers were denied or punished for seeking treatment for the disorder. e. A newspaper article titled, “PTSD and Violence by Veterans, Increased Murder Rates related to War Experiences,” 17 April 2014, which shows, in part at the end of the end of their 15-month tour in Iraq, the LethaI Warriors returned to Fort Carson with an impressive battlefield record, having cleared one of the worst parts of Baghdad, in some cases digging up improvised explosive devices (IEDs) with little more than screwdrivers and tire irons. Unfortunately, the Lethal Warriors achieved a kind of notoriety that was less for their battlefield exploits than for the battalion's connection to a string of murders. In December 2007 two Soldiers from the unit, were killed, and three fellow Soldiers were charged with murder. The killings were part of a larger pattern of violence extending back to 2005, including 11 murders, in what was the largest killing spree involving a single army base in modern U.S. history. f. A newspaper article titled, “SO River Native decorated after three combat tours,” 7 November 2017, which shows, in part, after three tours overseas, two in Iraq and one in Afghanistan Sergeant First Class is pleased to continue his successful career with the U.S. Army. g. A newspaper article titled, “Pressure not to Diagnose PTSD at the U.S. Army and Veteran Affairs,” 25 June 2019, which shows, in part, In June 2008, an Army service member obtained an explicit confession demonstrating that the Army pressured a staff psychologist to change their clinical diagnoses. h. A newspaper article titled, “Fort Carson Defensive after Soldiers report PTSD stigma,” 25 June 2019, which shows, in part, several Soldiers recently told National Public Radio, however, that they were denied help, ostracized because they could not cope and ultimately kicked out of the Army for misconduct or a personality disorder often losing some their benefits – after they were diagnosed with PTSD. i. A newspaper article titled, “PTSD Discharge Upgrade Process Improved by DOD, 25 June 2019,” which shows, in part, it is only in recent years that PTSD and traumatic brain injury (TBI) have received the recognition they deserve from the military and the Department of Veterans Affairs. Due to this late recognition, there is an entire generation of veterans who suffer from PTSD or TBI who have been forgotten, ignored, or even discriminated against (often simply because PTSD and TBI weren't as well understood as it is today). j. VA Rating Decision, 22 October 2021, which shows, in part, he received a 70- percent combined service-connected disability rating for PTSD and low back strain. 15. By regulation (AR 635-200), chapter 14 states action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. 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), commission of a serious offense, and convictions by civil authorities. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 16. In reaching its determination, the Board should consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 17. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting a reconsideration of his previous request to upgrade his characterization of service from under honorable conditions (general) to honorable. He contends he had a mental health condition that mitigated his misconduct, PTSD. 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 20 September 2006; 2) The applicant served in Iraq from 08 May 2007-28 February 2008; 3) The applicant was AWOL from 13 August 2008-18 May 2009; 4) The applicant was discharged on 29 June 2009, Chapter 14-12c, by reason of misconduct-serious offense, with an under honorable conditions (general) discharge; 5) On 12 October 2010, the Board denied his request for an upgrade of his discharge. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and medical records. The Armed Forces Health Longitudinal Technology Application (AHLTA) and VA’s Joint Legacy Viewer (JLV) were also examined. d. The applicant asserts he was experiencing PTSD as a result of his direct combat exposure during his deployment to Iraq. The applicant was seen at behavioral health a few days prior to going AWOL on 11 August 2008. He reported feeling depressed and overwhelmed. He did not feel he was fit for continued military service. The applicant went AWOL two days later. After returning from AWOL, the applicant was seen for a Mental Status Exam as part of his separation processing on 26 May 2009. The applicant was cleared for administrative action. The applicant sought a second opinion from another behavioral health provider, and he was diagnosed with PTSD on 09 June 2009. The applicant continued in behavioral health treatment till he left active service. A review of JLV provided evidence the applicant has been diagnosed and treated for PTSD, depression, and alcohol dependence by the VA. The applicant also receives 70% service-connected disability for PTSD. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence to support the applicant had condition or experience that mitigated his misconduct. ? Kurta Questions A. Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he was experiencing symptoms of PTSD that contributed to his misconduct. B. Did the condition exist or experience occur during military service? Yes, there is evidence the applicant endorsed symptoms of PTSD while in active service. C. Does the condition or experience actually excuse or mitigate the discharge? Yes, there is sufficient evidence that the applicant was exposed to potentially traumatic events during his deployment to Iraq, and he was experiencing symptoms of PTSD after returning from his deployment. The applicant had no history of any misconduct except for going AWOL after returning from his deployment. Avoidant behaviors, such as AWOL, are often a natural sequalae to PTSD. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the medical opinion finding there is sufficient evidence to support the applicant had condition or experience that mitigated his misconduct. The Board agreed there is sufficient evidence that the applicant was exposed to potentially traumatic events during his deployment to Iraq, and he was experiencing symptoms of PTSD after returning from his deployment. Evidence in the record show the applicant had no history of any misconduct except for going AWOL after returning from his deployment. Avoidant behaviors, such as AWOL, are often a natural sequalae to PTSD. Based on this, the Board determined relief was warranted, and upgraded the applicant’s discharge to honorable. 2. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board found the evidence presented does demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are sufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20100008549 on 12 October 2010. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant’s DD Form 214 for the period ending 29 June 2009, to reflect his characterization of service as honorable. 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. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. 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), commission of a serious offense, and convictions by civil authorities. 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. 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. 2. 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. 3. 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. 4. 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 (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. 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. 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. 5. 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. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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. 6. 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) AR20220007878 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1