IN THE CASE OF: BOARD DATE: 22 March 2023 DOCKET NUMBER: AR20220008125 APPLICANT REQUESTS: reconsideration of his prior request for: * physical disability retirement * upgrade of his other than honorable character of service * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) decision letter, 7 December 2021 * VA rating letter, 7 December 2021 * Dr. Evaluation Summary, 13 September 2019 * Dr. Addendum Evaluation Report, 8 June 2020 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 AR20170018076 on 1 September 2020. 2. The applicant states at the time he requested discharge, he was not aware of the critically important information that he was suffering from posttraumatic stress disorder (PTSD), prior to any misconduct that he was found to have committed while on active duty. Private medical opinion from Dr. dated 13 September 2019 states he opined that the claimant meets full diagnostic criteria for PTSD based upon DSM-5, that PTSD was due to the result of a military trauma occurring in Korea in 1990, and that the applicant's PTSD caused a fear of hostile military or terroristic activities. He opined that it is as least likely as not that the applicant’s PTSD contributed substantially and materially to the behavior leading to military separation. He opined that it is at least as likely as not that the claimant, at time of the behaviors leading to military separation, met criteria for insanity as defined by statutes for purpose of veteran benefits and character of discharge determinations. 3. The applicant enlisted in the United States Army Reserve on 6 July 1989 for a period of 8 years in the delayed entry program (DEP). He was discharged from the DEP enlisting in the Regular Army for a period of 6 years on 10 August 1989. 4. The applicant completed his required training and was awarded the military occupational specialty (MOS) 75B (personnel administration specialist). He was transferred to Korea effective 8 January 1990. On 24 October 1991, he was transferred to Fort Devens, MA. 5. A Personnel Qualification Record - Part I, prepared 9 December 1991, shows the applicant’s physical profile of 111111. A physical profile, as reflected on a DA Form 3349 (Physical Profile) or DD Form 2808, is derived using six body systems: "P" = physical capacity or stamina; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each body system has a numerical designation: 1 meaning a high level of fitness; 2 indicates some activity limitations are warranted, 3 reflects significant limitations, and 4 reflects one or more medical conditions of such a severity that performance of military duties must be drastically limited. Physical profile ratings can be either permanent or temporary. 6. A DA Form 3975 (Military Police Report) dated 29 February 1992 shows the following. At approximately 0215 hours, observed a 1992 Ford Escort, red in color, bearing MA registration #49C (dealer), no FD decal, heading south on Jackson Road. A routine traffic stop was initiated for weaving and crossing the center yellow line. Upon approaching the vehicle, detected a moderate odor of an alcoholic beverage emanating from the driver, later identified as [the applicant]. administered a field sobriety test to [the applicant], which he did not completed because he was unable to understand the instructions. [The applicant] started using profanity and being disrespectful towards . [The applicant] was apprehended and transported to the provost marshal office (PMO) where he was administered a field sobriety test by which he failed. [The applicant] stated in front of and that he had one beer earlier, but he was not drunk. [The applicant] was administered a second field sobriety test by which he also failed. advised [the applicant] of the implied consent law, requesting him to submit to a breathalyzer test, which resulted in a reading of .01 percent BAC. [The applicant] was advised of his legal rights, which he retained. [The applicant was further processed and released to his unit. [The applicant’s] vehicle was secured at Jackson Gate. 7. Police Department Case Report, dated 7 March 1992, shows complaints against the applicant for domestic abuse and battery, and malicious damage to property over $250. It states, radio dispatched to assist domestic attack at office at . Victim was with security at office. She said the suspect had kicked in the door when she returned to the apartment to look for the registration to prove to him the car was registered to her. [The applicant] just kept pushing and made threats to break her knees if she got into her vehicle and left. Victim said that when she got home, [the applicant] was pushing her because she was out all day with her friends. Victim said she was choked and thrown to the floor by the [applicant]. [The applicant] was informed of his rights and asked about this situation and he said he kicked the door in because his daughter was inside and that he pushed her because she was pushing him. [The applicant] was then placed under arrest for domestic abuse and battery, and malicious damage to property over $250. Door to Apartment . Officer transported victim to the station and obtained an abuse petition for her. 8. Court Division issued a Warrant for the applicant for failure to appear after recognizing to appear in relation to Police Department Case Report, dated 7 March 1992. 9. A Military Police Report, dated 12 March 1992, was issued in response to DA Form 4833 (Commander's Report of Disciplinary or Administrative Action) also in relation to Police Department Case Report, dated 7 March 1992. 10. A written reprimand, dated 19 March 1992, was placed in the applicant’s record citing the Military Police Report from 29 February 1992 for insubordinate conduct toward SSG . 11. An Application for Complaint, dated 8 October 1992, from shows military police arrested [the applicant] for violation of the restraining order issued by the District Court. 12. A Military Police Report, dated 20 October 1992, shows at 1931 hours, 8 October 1992, /SGT was telephonically notified by of a Violation of an Abuse Prevention Order. Preliminary investigation by revealed that [the applicant] was in violation of an Abuse Prevention Order issued by Judge District Court that was personally delivered to [the applicant] by police Department [Officer] at 0845 hours, 7 October 1992, by being in contact with . Further investigation by MPI revealed that [the applicant] had made telephonic contact as well as personal contact with after he had received the Abuse Prevention Order. [The applicant] was apprehended and transported by to the PMO where he was advised of his legal rights which he waived, rendering a verbal statement admitting to the offense. [The applicant] was further processed and released to his unit. Coordination with police Department revealed that [the applicant] is to appear in District Court at 0900 hours, 9 October 1992. Coordination with SJA at 2137 hours, 8 October 1992, revealed that he opined that there was sufficient evidence to title [the applicant] with the above offense and to ensure that the unit was advised to have [the applicant] at the court on 9 October 1992. Further investigation by MPI revealed that at 1430 hours, 19 October 1992 and at 1130 hours, 20 October 1992, [the applicant] made contact with which was in violation of an Abuse Prevention Order. Further investigation revealed that [the applicant] had made face to face contact with on 19 October 1992, which was in violation of an Abuse Prevention Order that was issued by Police Department at 1545 hours, 7 October 1992. [The applicant) later made face to face contact with on 20 October 1992, which is in violation of an updated Abuse Prevention Order that was issued by Police Department at 1545 hours, 19 October 1992. [The applicant] was apprehended and transported to the PMO where he was advised of his legal rights which [the applicant] stated he understood, but that due to him being represented by court appointed counsel and the counsel not being present, he was not asked any questions. [The applicant] was further processed and released to his unit. Further investigation by MPI revealed that at approximately 1130 hours, 28 October 1992, at the district Court, with Judge presiding, due to lack of jurisdiction, all charges regarding the above offenses were dismissed. 13. A Military Police Report, dated 4 November 1992, shows a complaint for violation of Abuse Prevention Order at 2125 hours on 3 November 1992. 14. Court Division issued a Warrant for the applicant for violation of a court order to refrain from abuse, to vacate the household, multiple family dwelling or workplace, or to have no contact with or her minor child, dated 23 November 1992. Specifically, [the applicant] did break and enter in the daytime the building, ship, vessel or vehicle of with the intent to commit a felony therein, and did put in fear a person lawfully therein. He did assault and beat . 15. A Military Police Report, dated 24 November 1992, shows a complaint for violation of Abuse Prevention Order, breaking and entering day time with intent to commit a felony, and assault and battery at 1534 hours on 23 November 1992. 16. A Military Police Report, dated 7 January 1993, shows a complaint for disorderly conduct at 0310 hours on 7 January 1993 at Jackson Gate. 17. A Military Police Report, dated 9 February 1993, shows a complaint for assault at 0232 hours on 31 January 1993. An attached statement from SGT who was performing unit Charge of Quarters duty at the time of the incident, states: At approximately 0255 hours 31 January 1993 upon my return to the CQ desk after making my appointed rounds. I witnessed SPC on the telephone, she was talking to the MP station. I asked her what the problem was, and she stated that [the applicant] had struck PVT . I then instructed her to give me the phone and I told the MP desk SGT that I would attempt to handle the incident from my end, and that if I could not, I would call him back. At this time, I instructed SPC to get me PVT. At Approximately 0300 PVT reported to me and I took her to the Reenlistment Office and asked her to tell me what happened. She told me that at approximately 0230 hours PFC (my CQ Runner) had knocked on her door and instructed her to call home because there was a situation at home. I had received a phone call at approximately 0230 hours from a female who said there was a situation at PVT parent’s house. She then said that she was heading towards the pay phones on the third floor and [the applicant] started harassing her. She asked [the applicant] if there was a problem at her parent’s house and he said no. She told him that this was not funny, stating her father was in failing health. At this point they became involved in a heated discussion, and she stated that he struck her. I instructed her to report the incident to the 1SG (First Sergeant) on Monday and that I would place the incident in my log. I also instructed her I would talk to [the applicant] and instruct him to stay off the third floor. At this time, I released PVT to her room and took [the applicant] into the reenlistment office. He stated that he was being harassed by PVT and that he did not strike her, and that she struck him. At this time, I instructed [the applicant] to stay off the third floor and that if I found him harassing her, he could be subject to UCMJ actions. After the interviews, myself and my CQ runner periodically checked the third floor area for his presence, and he was not located on the floor. At approximately 0330, the MP desk Sergeant called and asked me if I had handled the situation, and I told him that I had. 18. A DD Form 458 (Charge Sheet), dated 24 February 1993, shows the applicant charged as follows: * on or about 8 February 1993, behave himself disrespectfully in language and deportment toward Captain his superior commissioned officer * on or about 9 February 1993, was disrespectful in language and deportment toward First Sergeant superior noncommissioned officer * on or about 31 January 1993, unlawfully grab PFC forearms with his hands, and unlawfully strike PFC on or about the head with his hand, thereby causing her head to hit the wall * on or about 3 November 1992 and 23 November 1992, having knowledge of an abuse prevention order issued by Judge on 15 October 1992, willfully and wrongfully violate said abuse prevention order by attempting to contact SPC and by kicking down the door to Apartment T-4, and entering the premises wherein SPC resided. 19. On 24 February 1993, Captain preferred changes against the applicant and recommended trial by Special Court-Martial with the authority to adjudge a Bad Conduct Discharge. 20. On 4 March 1993, the applicant submitted a request for discharge for the good of the service under the provisions of Chapter 10, Army Regulation (AR) 635-200. He indicated he understood that he may request discharge for the good of the service because of the changes which had been preferred against him, the sentence for which may result in the imposition of a Bad Conduct Discharge. He indicated he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person. He acknowledged he had been advised of the implications that were attached to this decision. By submitting this request, he acknowledged that he was guilty of one or more of the charges against him. He acknowledged he had been afforded the opportunity to consult with counsel and had been fully advised of his rights. He acknowledged if his request was accepted, he may be discharged under other than honorable conditions, and understood the possible effects of an other than honorable discharge and would be deprived many or all benefits. He understood he may submit statements on his own behalf. 21. The applicant’s request was approved. He was discharged on 9 March 1993 under the provisions of AR 635-200, Chapter 10 for good of the service, with a character of service of other than honorable. 22. On 15 December 1994, the applicant petitioned the Army Discharge Review Board (ADRB) stating his other than honorable discharge was inequitable because it was based on one isolated incident in 42 months of service with no other adverse action. a. The Board determined the evidence of record shows the applicant was charged with the commission of offenses punishable under the Uniform Code of Military Justice with a punitive discharge. The Board noted that after consulting with legal counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court- martial. By doing so, the applicant admitted guilt to the offenses of disrespectful, assault, damaging property, and wrongfully violating an abuse prevention order. b. The Board was satisfied that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. Finally, the Board considered the applicant' s entire record of service for the period under review. It also noted that the characterization of service for this type of discharge is normally under other than honorable conditions and that the applicant was aware of that prior to requesting discharge. The Board, being convinced that the reason for discharge and the characterization of service were both proper and equitable, voted to deny relief. 23. In the adjudication of the applicant’s prior case, a medical advisory opinion was obtained from the ARBA medical advisor and it was incorporated into the ABCMR Record of Proceedings for Docket Number AR20170018076, which has been provided in full to the Board for review. The Advisor opined: a. A review of VA’s Joint Legacy Viewer (JLV) indicates he has received medical treatment in the VA system since 2009. On 9 August 2010, he was evaluated by a psychiatrist. The provider noted no prior psychiatric diagnoses other than polysubstance use. The applicant was on probation for assault charges and reports smoking marijuana and methamphetamine. He was diagnosed with Depressive Disorder, not otherwise specified (NOS), Methamphetamine Abuse, Cannabis Abuse, Antisocial Personality traits. On 10 August 2010 he was evaluated for enrollment in the intensive outpatient treatment for substance use. b. On 4 June 2018, the applicant completed a Compensation and Pension (C&P) Examination. He reported two marriages and two other significant relationships resulting in additional children. He reports his relationships with his adult children are not good and that they are scared of him. He estimated he held over 100 jobs since his discharge. He reported trouble getting along with people and was perceived as confrontational resulting in being fired from multiple jobs. He reported recently getting fired because he got into a fight. He estimated he has had more than 12 arrests for assaults, criminal mischief, and destruction of property. He reported being on probation for felony assault and “they are currently trying to revoke his probation for a violation” (marijuana use). The results of the C&P were service connected for treatment purposes only for PTSD with Antisocial Personality Disorder, Unspecified Depressive Disorder, and Cannabis Use Disorder. He does not have a service-connected disability rating. The review included his service record and concluded his service and discharge characterization disqualified him from a service-connected disability rating. c. On 11 June 2013, he completed a court ordered evaluation at the request of his defense attorney. The evaluator diagnosed him with PTSD and Major Depressive Disorder and found him legally fit to stand trial. In the applicant’s statement, he went to his wife’s apartment despite the protective order because he wanted to find out if she was cheating. He reported going around to a back window to see what was going on inside. He stated that he subsequently kicked open the front door of the apartment, destroyed the bathroom door. This describes a premeditated purposeful act to knowingly violate the protective order and break into the apartment. d. On 13 September 2019, a psychologist reviewed the applicant’s medical and military records and opined that the applicant’s PTSD is service connected and contributed to the behaviors that led to his separation. He also stated that it was at least as likely as not that the applicant met the criteria for insanity at the time of the event. e. In accordance with the 3 September 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 August 2017, Clarifying Guidance there is documentation to support a behavioral health condition at the time of his discharge. There is no documentation to suggest he did not meet retention standards at the time of his discharge. PTSD is a mitigating factor for disrespectful in language and deportment. PTSD is not a mitigating factor for violating a restraining order (multiple times), damage to property, and striking a female soldier. These are purposeful premediated acts of aggression and violence that are not mitigated by a diagnosis of PTSD. 24. On 1 September 2020, the Board denied the applicant’s request, determining the evidence presented did not demonstrate the existence of a probable error or injustice. Based upon the violent and criminal nature of the pattern of misconduct which led to the applicant’s separation, and the totality of the misconduct not being mitigated by a medical condition of the applicant, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the narrative reason for separation or an upgrade in characterization of service. 25. The applicant provided the following evidence not previously submitted: a. A VA decision letter stating his service in the Army from 10 August 1989 to 9 March 1993 is considered honorable for VA purposes because the applicant was deemed insane at the time of the incident. b. A VA rating decision letter, dated 7 December 2021, showing a rating of 100 percent for PTSD with generalized anxiety disorder, panic attacks, and agoraphobia; and 0 percent for erectile dysfunction effective 16 September 2021. c. An addendum to the previously considered evaluation report, dated 13 September 2019, written by Dr. to address concerns the VA introduced. Specifically, that he primarily focused on the undiagnosed PTSD during service; glossed over the exact nature of the applicant’s in service offenses and instead stated behaviors leading to these offenses were indicative of symptoms of PTSD; equated in-service PTSD symptoms with insanity; and did not provide evidence that the applicant was unable to understand the full nature and consequences of his actions. It states, in pertinent part, he did focus on PTSD as that is the mental disorder which resulted in a mental state consistent with the statute’s governing insanity determinations. His evaluation indicated symptoms at the time to include impulsivity, recklessness, anger, aggression, self- destructive behaviors, poor logic, and poor judgement. These symptoms and behaviors clearly impact one’s ability to understand the full nature and consequences of his actions. He summarized that it is at least as likely as not, that the applicant suffered from PTSD at the time of the behaviors leading to military separation. He focused on records substantiating this, with a specific focus on what symptoms of PTSD were present and consistent with his emergent highly maladaptive behaviors and included evidence of behaviors which clearly impacts one’s ability to fully understand one’s behavior and consequences of those actions. He also sought to address issues regarding whether his action at the time were better accounted for by a personality disorder as the presence of such a disorder with negate the claimed insanity. He noted the clear changes pre versus post trauma as personality disorders should have evidence of the disorder prior to military service (which he did not) and because the pre versus post analysis further gave evidence of the necessary radical departure from past functioning and a radical departure from societal expectations. 26. Based on the applicant's contention the Army Review Boards Agency (ARBA) medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. 27. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 27. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 28. Title 38, U.S. Code, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 29. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 30. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting physical disability retirement, upgrade of his characterization of service, and a personal appearance before the Board. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: (1) Applicant’s case has previously been considered by the ABCMR on 1 September 2020. (2) Veteran in essence asserts he meets criteria for PTSD based on military trauma occurring in Korea in 1990 and that said PTSD caused a fear of hostile military or terroristic activities. (3) He enlisted in the USAR on 6 July 1989 and subsequently into the RA on 10 August 1989. (4) Relevant legal and military incidents are summarized in the ROP and will not be recounted. (5) Charge sheet dated 24 February 1993 indicates charges of disrespect to a superior commissioned officer and a superior noncommissioned officer (both February 1993); unlawful striking of another individual on or about the head (January 1993); and violation of an abuse prevention order (multiple November 1992). (6) He was discharged 9 March 1993 under AR 635-200 Chapter 10 UOTHC. (7) A medical advisory from prior consideration by the Board was described in the ROP. (8) Additional evidence was provided for the current ABCMR review to include a VA decision letter indicating the period of service from 10 August 1989 to 9 March 1993 was considered honorable for VA purposes; a VA rating decision letter dated 7 December 2021 showing 100% SC for PTSD (with associated diagnoses also noted); and an addendum to previously considered report dated 13 September 2019 c. Supporting Documents All supporting documents reviewed. Advisor appreciates the significant amount of information associated with applicant’s request and the diligence that has gone into making his argument. Lack of citation or discussion in this section should not be interpreted as lack of consideration. DD Form 149 references PTSD and other mental health conditions associated with application. The advisor has reviewed and appreciates the extensive statements dated 13 September 2019 and 8 June 2020 from. Records contain competency evaluation for the court from June 2013 which resulted in diagnoses of PTSD, chronic, secondary to trauma while serving in US Army; and Major Depressive Disorder, recurrent, moderate to severe without psychotic features. He was deemed at that time legally competent to stand trial, with ability to consult with attorney and make reasoned legal choices and decisions, and to understand the proceedings. The report noted he had no history of mental health care, and further assessment and treatment was recommended. Multiple character statements were reviewed and appreciated as was memorandum from Patriots Law Group dated 27 September 2018. Advisor references an applicant-authored statement in the record (under “Stressor #2”). In this statement he describes confrontation with wife which is suggestive of both pre- meditation and awareness that such behavior could be problematic and lead to significant consequences. He notes “as I approached I really didn’t want to be seen because my suspicions could be all wrong. So I went around to back bedroom window…” and then after a confrontation “I was so devastated and scared and embarrassed I just left. I also knew I was on barracks restriction and was terrified of trouble I may be facing.” d. AHLTA The Army electronic medical record, AHLTA, was not reviewed; it was not an existing EMR at the applicant’s time of service. e. JLV Available VA records were reviewed via JLV. Records indicate applicant has a service connection for PTSD (100%). He has VA treatment records dating back to at least 2009. This is not meant to be an exhaustive history of his care. His first mental health contact appears to be 9 August 2010 which noted “no past psychiatric history besides polysubstance abuse.” He was diagnosed with Depressive Disorder NOS, Methamphetamine Abuse, Cannabis Abuse, and Antisocial Traits. He scored 0/4 on a PTSD screener. During a 24 July 2019 Crisis Line call he shared that when he was 18 in Korea he was assaulted by Koreans and was now experiencing frequent nightmares. He further elaborated his history of trauma and disciplinary issues in the military during a mental health appointment on 25 July 2019. It appears he completed rather frequent sessions of treatment for psychotherapy for PTSD and mood concerns beginning later in 2019, as well as psychiatric medication management. Most recent mental health contact at the time of review appears to be 16 March 2023 and references an inpatient psychiatric hospitalization in July 2022 and one additional hospitalization in the past; encounter again referenced the traumatic event of assault by civilians in Korea, which he did not feel was taken seriously because of his race. Compensation and Pension Evaluation dated 17 May 2018 resulted in diagnoses of PTSD, Antisocial Personality Disorder, unspecified depressive disorder, and cannabis use disorder. Primary trauma was an assault in Korea in which he was attacked by several individuals. There was no clear evidence of prior psychiatric history although he referenced being prescribed medication on one occasion in the past which made him ill. He described “more than 12 arrests” to include assaults, criminal mischief, and destruction of property. He was on probation at the time of evaluation. Evaluating provider also notes the applicant appears to display evidence of personality pathology including repeatedly engaging in behaviors that are grounds for arrest, irresponsibility, failure to plan ahead/impulsivity, and irritability and aggressiveness as specific traits contributing to diagnosis of antisocial personality disorder. This was the only mental health compensation and pension examination located for review within JLV. Evaluator appreciates other documentation in the record (eg, decision letter dated 7 December 2021 referencing a 2 November 2021 exam) indicating increase to 100% as of 16 September 2021. For the purposes of this review, PTSD as the primary potentially mitigating factor is noted and established. f. Other Query of HAIMS did not return any documents for this applicant. No other hard copy medical records other than what may have been contained in his supporting documents were available for review. Kurta Questions: 1. Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant asserted PTSD and other behavioral health conditions associated with the circumstances of his discharge, and records indicated he is 100% service connected for PTSD. 2. Did the condition exist or experience occur during military service? Yes. The applicant’s assertion is supported by his service connection for PTSD. 3. Does the condition or experience actually excuse or mitigate the discharge? Partial. The applicant asserts mitigation due to PTSD and other behavioral health conditions at the time of his offense/discharge, and he has been awarded 100% VA service connection for PTSD. There is evidence to support partial mitigation of his disciplinary history and the circumstances leading to his discharge. Specifically, the natural history and sequelae of PTSD is often associated with irritability and, at times, difficulty with authority figures. Therefore, offenses associated with disrespect, to include to an officer and to an NCO, would be considered mitigated as there is a nexus between PTSD and such behaviors. The advisor appreciates the asserted trauma eventually leading to PTSD diagnosis had significant impact on the applicant, as Dr. highlighted; however, it remains that PTSD does not render an individual unable to differentiate right from wrong and adhere to the right. Therefore, it does not mitigate charges associated with what appears to be purposeful acts of violence/intimidation, to include assault and/or knowingly disregarding a restraining or abuse prevention order. It is the advisor’s opinion that even when applying liberal consideration standards, any mitigation offered by the presence of PTSD or other related mental disorder at the time of service does not outweigh the significant nature of applicant’s disciplinary offenses. Additionally, applicant requests change in narrative reason for discharge to disability retirement. Applicant is service connected for PTSD, but VA examinations are based on different standards and parameters; they do not address whether a medical condition met or failed Army retention criteria or if it was a ratable condition during the period of service. Therefore, a VA disability rating does not imply failure to meet Army retention standards at the time of service or that a failure to render a diagnosis on active duty is in error. Available documentation references “insanity” at the time of service/offenses; this is generally acknowledged as a legal term indicating, in essence, the inability to appreciate right from wrong and adhere to the right and/or to know that a crime is being committed; the cited “insanity” determination appears to have been made approximately 30 years after discharge based on VA statutes for determining veteran benefits and discharge determination. There is evidence in the applicant’s own written statement (referenced in part above) that he was aware that aspects of his behavior could be perceived as problematic, and he was fearful of consequences. There is no evidence at the time of service that applicant was diagnosed with PTSD or other psychiatric conditions; was placed on a psychiatric profile; determined to not meet retention standards or to be unable to perform his job responsibilities; or was referred for consideration of MEB. Further, and perhaps more importantly given the applicant’s reported history, a PTSD diagnosis at the time of service, or presumption of same, would not have automatically resulted in a determination that he did not meet retention standards and/or merited a referral to the MEB, nor would it have precluded disciplinary action for misconduct. In summary, the evidence does not suggest that applicant is entitled to disability retirement. 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 there is no evidence at the time of service that applicant was diagnosed with PTSD or other psychiatric conditions; was placed on a psychiatric profile; determined to not meet retention standards or to be unable to perform his job responsibilities; or was referred for consideration of MEB. The Board determined there was insufficient evidence to support the applicant was entitled to a disability retirement. 2. The Board determined there is evidence to support partial mitigation of his disciplinary history and the circumstances leading to his discharge. Specifically, the natural history and sequelae of PTSD is often associated with irritability and, at times, difficulty with authority figures. Therefore, offenses associated with disrespect, to include to an officer and to an NCO, would be considered mitigated as there is a nexus between PTSD and such behaviors. However, the Board considered that PTSD does not render an individual unable to differentiate right from wrong and adhere to the right. Therefore, it does not mitigate charges associated with what appears to be purposeful acts of violence/intimidation, to include assault and/or knowingly disregarding a restraining or abuse prevention order. The Board agreed with the advisor’s opinion that even when applying liberal consideration standards, any mitigation offered by the presence of PTSD or other related mental disorder at the time of service does not outweigh the significant nature of applicant’s disciplinary offenses. Based on preponderance of evidence, the Board found there is insufficient evidence to amend the previous Board’s decision and denied relief. 3. 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 : : : 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 AR20170018076 on 1 September 2020. 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 (AR) 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 provides that 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 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge, may submit a request for discharge for the good of the service in lieu of trial by court- martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 2. Title 10, U.S. Code, Chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 3. Title 38 U.S. Code, Section 1110 (General - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 4. Title 38 U.S. Code, Section 1131 (Peacetime Disability Compensation - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 5. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Once a determination of physical unfitness is made, all disabilities are rated using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). a. Disability compensation is not an entitlement acquired by reason of service- incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 6. AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 7. Section 1556 of Title 10, U.S. Code, Section, 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. 8. 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 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. 9. 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, on those conditions or experiences. 10. 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 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. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 11. AR 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. a. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220008125 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1