IN THE CASE OF: BOARD DATE: 22 March 2023 DOCKET NUMBER: AR20220007934 APPLICANT REQUESTS: Reconsideration of his previous request for 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) * Department of Education, High School Diploma * United States Army Quartermaster Corps Regiment Certificate of Affiliation * Traffic School of completion receipt * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Character Reference Letter * College, Student Program Plan and Acceptance Letter * Secretary of Veterans Affairs Harassment Policy * Police Record FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Record (ABCMR) in Docket Number AR20200005520, on 12 January 2021. 2. On his DD Form 293, the applicant notes post-traumatic stress disorder (PTSD) is related to his request, as a contributing and mitigating factor in the circumstances that resulted in his separation. 3. Having had prior service in the Florida Army National Guard, the applicant enlisted in the Regular Army on 23 April 2009, for a 3 year and 16 weeks term of service, in the grade of E-3. He was awarded military occupational specialty 92Y (Unit Supply Specialist). 4. The applicant was formally counseled on five separate occasions between 26 August and 10 November 2010, for reasons including but not limited to: * leaving his M-16 weapon unattended * being disrespectful to a non-commissioned officer * conduct and performance * failure to be at appointed place of duty * failure to be at dental appointment 5. A DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 23 October 2010, shows the applicant’s commander recommended a FLAG for adverse action. The action was approved on 23 November 2010. 6. The applicant was reported as absent without leave (AWOL) from on or about 6 December 2010 through on or about 17 December 2010. He was formally counseled on 7 January 2011, for being AWOL. 7. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on 7 January 2011 for: * failure to go to his appointed place of duty, on or about 8 November 2010 * striking a dispatch book held by a superior non-commissioned officer (NCO), causing it to strike her in the face, on or about 26 August 2010 * being disrespectful in language and deportment towards a superior NCO, on or about 26 August 2010 * through negligence, discharge a M249 in the Aid Station, on or about 23 October 2010 8. The applicant was formally counseled on 10 January and 15 March 2011, for failure to report and sleeping on duty. 9. The applicant was command referred to under-go a mental evaluation due to being involved in repeated counseling’s, AWOL, failure to report and an Article 15. 10. The applicant underwent an evaluation on 25 April 2011. The relevant DA Form 3822-R (Report of Mental Status Evaluation) shows he was psychiatrically cleared for any action deemed appropriate by command. The clinical psychologist determined there was no evidence of a psychiatric disease or defect. 11. The applicant's immediate commander notified the applicant on 8 May 2011 of his intent to initiate separation actions against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for misconduct – patterns of misconduct. As the specific reasons, his commander noted the applicant failed to report to his appointed place of duty on diverse occasions and he were absent from his unit for fifteen days. In addition to this misconduct, he struck a superior NCO, and was disrespectful in language and deportment toward another NCO. 12. The applicant consulted with counsel on 8 May 2011 and was advised of the basis for the contemplated action to separate him and of the rights available to him. He acknowledged receipt and elected to submit a statement in his own behalf on a later date, however his record is void of a statement. 13. The applicant's immediate commander formally recommended his discharge on 12 May 2011, under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct. The separation authority approved the recommended action on 17 May 2011, and directed the issuance of a General Discharge Certificate. 14. The applicant was discharged on 2 July 2011. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of pattern of misconduct. His service was characterized as under honorable conditions (general). He was credited with 2 years, 2 months, and 10 days of net active service this period. His DD Form 214 further shows he was awarded or authorized the Afghanistan Campaign Medal W/ Campaign Star, National Defense Service Medal, Global War on Terrorism Service Medal, and the Army Service Ribbon. 15. The applicant petitioned the Army Discharge Review Board (ADRB) for upgrade of his discharge characterization. On 2 December 2013, the ADRB denied the applicant’s request, finding the applicant’s discharge was both equitable and proper. 16. The applicant petitioned the ADRB a second time for an upgrade of his discharge. On 13 January 2020, the ADRB administratively closed the applicant’s petition after he failed to show for a personal appearance before the Board. 17. The applicant petitioned the ABCMR for upgrade of his discharge characterization. On 21 January 2020, the Board determined the evidence presented did not demonstrate the existence of a probable error or injustice. His request for relief was denied. 18. The applicant provides: a. Post-service documents of completion, such as a high school diploma, U.S. Army Quartermaster Certificate of Affiliation, and a traffic school completion receipt. b. A character reference letter from the Mayor, dated 28 December 2016, attesting to the applicant being a man of strong moral character and contributing to himself and his community. He volunteers to help other veterans, has excellent grades, and is pursuing his nursing degree. c. Police Department record check, dated 16 May 2022, showing he had no local police record 19. Published guidance to the Boards for Correction of Military/Navy Records (BCM/NR) 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 20. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is again applying to the ABCMR requesting an upgrade of his 2 July 2011 discharge characterized as under honorable conditions (general). He has indicated that PTSD is a condition related to this request. b. The Record of Proceedings and the previous denial detail the applicant’s military service and the circumstances of the case. His DD 214 for the period of service under consideration shows he entered the regular Army on 23 April 2009 and received an under honorable conditions (general) discharge on 2 July 2011 under the separation authority provided by paragraph 14-12b of AR 635-200, Active Duty Enlisted Administrative Separations (17 December 2009): A Pattern of Misconduct. It shows he Served in Afghanistan from 3 March 2011 thru 17 May 2011 (76 days). c. This request was previously denied in full on 21 January 2021 (AR20200005520). Rather than repeat their detailed findings here, the board is referred to the record of proceedings for that case. This review will concentrate on new evidence submitted by the applicant. d. No medical documentation or related probative evidence was submitted with the application. e. On 8 May 2011, the applicant’s company commander informed him he was initiating separation actions under paragraph 14-12b of AR 635-200 on 10 September 2010: “The reason for my proposed action is: You failed to report to your appointed place of duty on diverse occasions and you were absent from your unit for fifteen days. In addition to this misconduct, you struck a superior noncommissioned officer and you were disrespectful in language and deportment toward another noncommissioned officer. This behavior is unacceptable, and your misconduct will not be tolerated by this Unit, this Brigade or the United States Army. f. On 17 May 2011, the brigade commander released the applicant from duty in Afghanistan and directed the applicant be discharged with his service characterized as under honorable conditions (general). g. There are only two behavioral health related AHLTA. The first is his pre- separation mental status evaluation completed on 26 April 2011. The provider documented a normal examination, found no psychiatric diagnosis or axis I condition, and psychiatrically cleared for any administrative actions deemed appropriate by Command. h. The second was on 6 May 2011 after the applicant self-referred for stress after “he was informed today that he was going to be demoted for disrespecting an NCO approximately two months ago:” “According to SM {service member}, he has “had enough” and has chosen to “talk back” or be defiant when given a “stupid order like getting smoked.” SM reported feeling especially frustrated when others in his unit are not being corrected or “smoked.” SM indicated feeling as if it would be better off if he was administratively separated from the Army for failure to adapt to military service. He indicated that he {is} “ok with separation” and he would like the process to be quick so that he can get on with the rest of his life. He came into behavioral health to see if we had any influence to expedite his discharge and to vent to someone outside of his unit.” i. The provider diagnosed the applicant with “Combat Operational Stress Reaction.” This military diagnosis in not the result of actual combat but rather reflects the situational stresses of working and living in a combat theater. j. There is no evidence the applicant had a mental health or other medical condition which would have then contributed to or would now mitigate his multiple UCMJ violations; or that would have failed the medical retention standards of chapter 3, AR 40-501, Standards of Medical Fitness, and been a cause for referral to the DES prior to his discharge. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of her office, grade, rank, or rating prior to his discharge. k. Review of his records in JLV shows he has been awarded three VA service- connected disability ratings, none of which are for his diagnosed adjustment disorder. l. It is the opinion of the ARBA Medical Advisor that a discharge upgrade remains unwarranted. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not 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 advising official finding no evidence the applicant had a mental health or other medical condition which would have then contributed to or would now mitigate his multiple UCMJ violations; or that would have failed the medical retention standards of chapter 3, Standards of Medical Fitness, and been a cause for referral to the DES prior to his discharge. The Board found no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of her office, grade, rank, or rating prior to his discharge. 2. The Board noted, the applicant provided insufficient evidence of post-service honorable conduct that might have mitigated the discharge characterization. The Board detremined, the applicant was discharged for misconduct and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. Therefore, the Board denied relief. ? 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 Board found 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 to amend the decision of the ABCMR set forth in Docket Number AR20200005520, on 12 January 2021. 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 1556 provides, the Secretary of the Army shall ensure that an applicant seeking corrective action by 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. 2. 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. 3. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and 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 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. 4. The Secretary of Defense directed the Service DRBs and 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 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, traumatic brain injury (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 BCM/NRs on 25 July 2018, 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 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) AR20220007934 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1