IN THE CASE OF: BOARD DATE: 14 March 2023 DOCKET NUMBER: AR20220007909 APPLICANT REQUESTS: an upgrade of his Under Other than Honorable Conditions (UOTHC) discharge to an Honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge) * Standard Form (SF) 600 (Health Record – Chronological Record of Medical Care) * After Visit Summaries (three) * Medication List * Office visit Progress Notes 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, his characterization should be upgraded because he had much more outstanding conduct and contributions to his unit and this country than he had misconduct. He suffers from Post-Traumatic Stress Disorder (PTSD) and other medical conditions that are all related to his military service. He needs to use Department of Veterans Affairs (DVA) benefits for medical care and to purchase a home for his family. 3. On 6 March 1996, the applicant enlisted in the Regular Army for a period of 3 years. He continued to serve through two immediate reenlistments while stationed in the Continental U.S. and in Germany. He was promoted to the rank/grade of sergeant (SGT)/E-5 on 1 June 2002. 4. A Military Police Report shows the applicant was apprehended by military authorities on 30 March 2003, for driving while intoxicated (DWI) on post at Fort Hood, TX. It was noted that the applicant was emitting a smell of alcohol, so he was administered a field sobriety check, which he failed. He was advised of his rights, which he waived and was administered a breath test with a result of 0.095 percent blood alcohol content. He was legally processed then released to his unit. 5. On 9 April 2004, the applicant was administered a General Officer Memorandum of Reprimand (GOMOR) for his 30 March 2003 DWI incident. After considering the applicant's written statement, the imposing General Officer directed the GOMOR be filed in the applicant's Official Military personnel File. 6. On 1 September 2004, the applicant reenlisted for a period of 5 years. 7. On 28 February 2005, an Amended Judgment was filed by the Division of U.S. District Court, Western Division of pertaining to sentencing the applicant for his 30 March 2003 DWI incident. He was sentenced to probation for a term of one year. While on probation, he had to comply with the following additional conditions: * serve a 7-day term of confinement * abstain from the use of alcohol and/or all other intoxicants during the term of supervision * pay for and participate in the DWI Victim Impact Program and comply with all rules of the program as further directed by his probation officer * successfully complete an approved DWI education program within 180 days of being placed on supervision 8. A DA Form 4856 (Developmental Counseling Form), shows the applicant was counseled regarding two separate incidents involving negligence on his part. He was advised that continued conduct of this nature could result in punishment under the provisions of the Uniform Code of Military Justice (UCMJ) and/or the initiation of action for him to be administratively separated and the potential consequences of such a separation. He was specifically counseled for: * noncompliance with the terms of his probation for failing to contact his parole officer * suspension of his check cashing privileges for failing to make payment on his Military Star Card 9. A Police Department Incident/Investigation Report shows the applicant was involved in an automobile accident that resulted in him being arrested and charged with DWI on 22 May 2005. It was noted that the applicant was emitting a smell of alcohol, so he was administered a field sobriety check, which he failed. He was advised of his rights, which he waived and was administered two breath tests with result of 0.215 and 0.199 percent blood alcohol content. 10. A Serious Incident Report, dated 13 July 2005, shows the applicant's unit was contacted by an individual trying to contact the applicant to get him to pay for damages he caused to her vehicle during the 22 May 2005 DWI incident. It was reported the applicant had failed to maintain his lane, hit a car being driven by a woman, and then struck three other parked vehicles. The applicant did not inform his chain of command regarding the incident. An administrative adverse action flag was imposed to suspend the applicant's receipt of any favorable personnel actions, effective 22 May 2005. 11. A civilian court order, dated 29 June 2005, shows the applicant was ordered to appear in court for a final probation revocation hearing on 3 August 2005. 12. A State of citation shows the applicant was served notice that he had been sued and he was ordered to appear before Small Claims Court for a determination on the plaintiff's demand for the sum of $4917.00 due for damage cause to a vehicle during his DWI incident on 22 May 2005. 13. On 13 September 2005, a representative of the Fort Carson Housing Referral Office notified the applicant's chain of command that he would be evicted from his apartment on 16 September 2005 due to nonpayment of rent, and his belongings would be placed on the street. 14. On 17 September 2005, the applicant's unit reported him absent without leave (AWOL) and on 22 September 2005 he was reported as present for duty. 15. On 22 September 2005, the applicant was counseled by his immediate commander regarding his DWI incident on 22 May 2005 and his recent period of AWOL. The commander advised the applicant that he intended to initiate separation action against him due to his pattern of misconduct and failure to rehabilitate. He also suspended the applicant's pass privileges while he was under investigation for violation of the UCMJ. 16. On 28 September 2005, the applicant underwent a mental health evaluation to determine whether he was suitable for administrative separation processing. It was determined that he had the mental capacity to understand and participate in the proceedings, he was mentally responsible, and he met regulatory retention standards. He was cleared for any administrative action deemed appropriate by command. 17. The applicant underwent a pre-separation medical examination on 30 September 2005. a. A DD Form 2807-1 (Report of Medical History) shows he self-reported that he was currently in good health. He was taking Percocet pain medication and that he had experienced or was experiencing the following medical conditions at the time. * Shortness of breath * Painful shoulder, elbow, or wrist * Recurrent backpain or any back problem * Foot trouble * Swollen or painful joints * Knee trouble * Sexually transmitted disease * Pain of pressure in his chest * Testicular torsion b. A DD Form 2808 (Report of Medical Examination) shows he suffered from: * High cholesterol * Hearing loss * Chronic shoulder pain, possible rotator cuff tear 18. On 6 October 2005, the applicant's immediate commander requested an administrative separation packet be prepared on the applicant due to his pattern of misconduct. He cited the specific reasons for this separation as him being charged and convicted for DWI on two separate occasions; his violation of probation that resulted in serving 30 days in a county jail in his failure to pay for $4900.00 worth of damages incurred in his second DWI; his pending lawsuit; and his pending eviction for failure to pay his rent. 19. An Army and Air Force Exchange Service (AAFES) Exchange Credit Program statement shows the applicant had a debt to AAFES in the amount of $2700.00 as of 14 February 2006. 20. On 16 March 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 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, by reason of Commission of a Serious Offense. The specific reasons for this action were the applicant's receipt of two DWI citations, his period of AWOL, and his delinquency in making payments to his Military Star Card account. The commander advised the applicant that he was recommending the applicant's service be characterized as UOTHC. The applicant acknowledged receipt of the notification on the same date. 21. 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 consideration of his case by an administrative separation board (ASB). 22. On 23 March 2006, the applicant submitted a revised election of rights memorandum, wherein he requested to voluntarily waive his right to personally appear before an ASB. 23. On 24 March 2006, 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, Paragraph 14-12c by reason of commission of a serious offense. The applicant's intermediate commanders recommended approval of the recommendation for separation from service with the issuance of a discharge UOTHC. 24. On 25 April 2006, the separation authority disapproved this request and directed referral of the applicant's case to an ASB to be convened at his order. 25. The applicant appeared before an ASB on 11 May 2006. During this board, he was allowed to make a statement, as were several witnesses on his behalf. After careful consideration of all matters presented, the board determined by unanimous decision, the applicant should be separated from military service and his service should be characterized as general, under honorable conditions. 26. On 6 June 2006, the local Office of the Staff Judge Advocate recommended that the ASB reconvene for the determination of his characterization of service because the board had considered evidence from a prior enlistment when rendering their decision. 27. On 1 August 2006, the applicant appeared before a second ASB which had a different President, Recorder, and Counsel for the Respondent. During this board, he was allowed to make a new statement and the statements from witnesses on his behalf in the previous ASB were also considered. After careful consideration of all matters presented, the board determined by unanimous decision, the applicant should be separated from military service and his service should be characterized as UOTHC. 28. The separation authority approved the ASB's recommendation. He also directed the applicant be reduced from SGT/E-5 to private/E-1. 29. Orders and the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) show he was discharged accordingly on 30 August 2006. His DD Form 214 shows, in: a. Block 12 (Record of Service) - He completed 10 years, 5 months, and 19 days of net active service this period. b. Block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized (All periods of service) - Army Commendation Medal (2nd Award), Army Achievement Medal (3rd Award), Army Good Conduct Medal (2nd Award), National Defense Service Medal, Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, Kosovo Campaign Medal, Noncommissioned Officer Professional Development Ribbon, Army Service Ribbon, and Overseas Service Ribbon (2nd Award). c. Block 18 (Remarks) - Continuous honorable active service 6 March 1996 to 31 August 2004. Service in Kosovo from 30 May 2000 to 12 December 2000 and in Kuwait and Iraq from 14 April 2003 to 13 April 2004. He completed his first full term of service. d. Block 24 (Character of Service) - His characterization of service was UOTHC. e. Block 25 (Separation Authority) - The authority for his separation was Army Regulation 635-200, Paragraph 14-12c. f. Block 26 (Separation Code) - His Separation Program Designator Code was "JKQ." g. block 27 (Reentry Code) - His Reentry Eligibility (RE) Code was "4." h. block 28 (Narrative Reason for Separation) - The narrative reason for his separation was "Misconduct (Serious Offense)." i. Block 29 (Dates of Time Lost During This Period) - time lost due to AWOL from 17 September 2005 to 22 September 2005. 30. The applicant provides the following documents which are available in entirety for the Board's consideration: a. An SF Form 600 shows the applicant was evaluated at Evans Army Community Hospital, Fort Carson, CO for suspected mental condition on 20 September 2005 as part of his pre-separation medical examination process. b. Three After Visit Summaries that document his visits to Cape Fear Valley Health Pavilion Family Care, on the following dates for the reasons shown: (1) 23 June 2022: * Acute bilateral low back pain without sciatica * Erectile dysfunction, unspecified erectile dysfunction type * PTSD * Primary hypertension * Chronic bilateral low back pain without sciatica (2) 4 August 2022: * Chronic bilateral low back pain without sciatica * PTSD (3) 31 October 2022: PTSD c. A list of the medications the applicant was prescribed as of 31 October 2022. d. Progress notes from a visit to the Community Mental Health Center at Cape Fear Valley Health Pavilion on 31 October 2022, which show the applicant requested therapy to help him deal with depression and PTSD. 31. The applicant's record is void of evidence and he has not provided evidence showing he was diagnosed with any type of behavioral health condition during his period of service. 32. 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. 33. 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. 34. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge. He contends he had mental health conditions 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 6 March 1996; 2) The applicant served in Kosovo from 30 May 2000-12 December 2000 and in Kuwait and Iraq from 14 April 2003-13 April 2004; 3) On 16 March 2006, the applicant's immediate commander notified the applicant of his intent to initiate actions to separate him for Commission of a Serious Offense. The specific reasons for this action were the applicant's receipt of two DWI citations, his period of AWOL (17-22 September 2005), and his delinquency in making payments to his Military Star Card account. The applicant also had a history of previous misconduct which included: violation of probation that resulted in serving 30 days in a county jail in Texas; failure to pay for $4900.00 worth of damages incurred in his second DWI; a pending lawsuit; and a pending eviction for failure to pay his rent; 4) The applicant was discharged on 30 August 2006, Chapter 14-12c. His characterization of service was UOTHC. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and medical records. Th VA’s Joint Legacy Viewer (JLV) and hardcopy civilian medical records were also evaluated. d. The applicant asserts he was experiencing PTSD as a result of his direct combat exposure during his deployment to Iraq. The applicant was referred to substance abuse counseling after one of his DWIs prior to his Iraq deployment, and the applicant reported completing the program. The applicant was seen for a Mental Status Exam as part of his separation processing on 28 September 2005. The applicant was not diagnosed with a mental health condition, and he was cleared for administrative action. He was also seen on 30 September 2005 for his separation physical. The applicant was reported to experience shortness of breath and pain of pressure in his chest, but he was not diagnosed with a mental health condition. e. A review of JLV provided evidence the applicant was seen by the VA in the ED on 20 May 2016 for emergency services. The applicant was having thoughts of harming other people and difficulty controlling his anger. He was not diagnosed with a mental health disorder, but he was released. The applicant does not receive any service- connected disability. He did provide civilian medical documentation from 2022. The applicant has been diagnosed with PTSD by a civilian nurse practitioner, who appeared to be his primary medical provider. The applicant reported his symptoms are related to his combat experiences in Iraq. f. 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 partially mitigated his misconduct. Kurta Questions (1) 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. (2) Did the condition exist or experience occur during military service? Yes, the applicant reported experiencing symptoms of PTSD while on active service, and there is some evidence he may have report a few symptoms associated with anxiety during his medical separation physical. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially, 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’s alcohol abuse exhibited by his repeated DWIs could be an attempt to self-medicate or to avoid his negative emotional state. Avoidant behaviors are often a natural sequalae to PTSD. The applicant was also found to be AWOL on one occasion, and this avoidant behavior is also a natural sequalae to PTSD. However, there is no nexus between PTSD and the applicant’s failure to pay his rent, his delinquency in making payments to his Military Star Card account, his failure to pay damages from incurred from one of his DWIs, and his violation of probation that resulted in serving 30 days in a county jail in Texas This type of misconduct is not part of the natural history or sequelae of PTSD, and PTSD does not affect one’s ability to distinguish right from wrong and act in accordance with the right. However, the applicant contends his 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, 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. a. The applicant was discharged from active duty due to Misconduct – Serious Offense (two DWI citations, AWOL, delinquency in making payments to his Military Star Card account). An administrative separation board considered his case and recommended his separation with an under other than honorable conditions discharge. The separation authority approved it. b. 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 partial mitigation. There is 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’s alcohol abuse exhibited by his repeated DWIs could be an attempt to self- medicate or to avoid his negative emotional state. The applicant was also found to be AWOL on one occasion, and this avoidant behavior is also a natural sequalae to PTSD. However, there is no nexus between PTSD and the applicant’s failure to pay his rent, his delinquency in making payments to his Military Star Card account, his failure to pay damages from incurred from one of his DWIs, and his violation of probation that resulted in serving 30 days in a county jail in Texas This type of misconduct is not part of the natural history or sequelae of PTSD, and PTSD does not affect one’s ability to distinguish right from wrong and act in accordance with the right. c. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. However, the Board noted that the applicant served in Kosovo and in Kuwait and had completed over 10 years and 5 months of service. While his service did not rise to the level required for an honorable discharge, the Board determined a general discharge is appropriate under published DoD guidance for liberal consideration of discharge upgrade requests. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 30 August 2006 showing his character of service as Under Honorable Conditions, General. * Separation Authority: No Change * Separation Code: No Change * Reentry Code: No Change * Narrative Reason for Separation: No Change 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge to fully honorable 1. 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 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. 4. 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 "JKQ" is an appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 14, Paragraph 14-12c, by reason of Misconduct. Additionally, the SPD/RE Code Cross Reference Table established that RE code "4" was a proper reentry code to assign to Soldiers separated under this authority and for this reason. 5. 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. 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) AR20220007909 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1