IN THE CASE OF: BOARD DATE: 17 February 2023 DOCKET NUMBER: AR20220008133 APPLICANT REQUESTS: 1. reconsideration of his previous request for: * promotion to master sergeant (MSG)/E-8 * retroactive pay from 2015 to present * regular retirement with all benefits * severance package 2. As a new request a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel's Brief in Support of Correcting Military Record * DD Form 214 (Certificate of Release or Discharge from Active Duty), 11 February 2015 * Army Board for Correction of Military Records (ABCMR) Docket Number AR20190009223, 8 December 2020 * DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER) * DA Form 1059 (Service School Academic Evaluation Report) * DA Form 638 (Recommendation for Award), 14 September 2007 * Letter of Support * Summarized Administrative Separation Board Proceedings * Diplomate American Board of Psychiatry and Neurology letter * Army Discharge Review Board (ADRB) Docket Number AR20180016060, 20 March 2019 * Rated Disabilities 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 AR20190009223 on 8 December 2020. 2. The applicant represented by legal counsel states in pertinent part that he enlisted in the U.S. Army Reserve (USAR) in October 2000 and deployed multiple times in support of Operation Enduring Freedom. In March 2013, the applicant tested positive for Tetrahydrocannabinol (THC) during a urinalysis. In result of this event, the applicant went before an administrative separation board. Upon conclusion of the board, the applicant was recommended for separation with an "Under Honorable Conditions" (General) Characterization of Service. a. On 19 June 2014, the applicant was diagnosed with a Post-Traumatic Stress Disorder (PTSD). Disregarding this diagnosis, his command proceeded with the separation process ultimately discharging him on 11 February 2015. At the time of separation, the applicant had completed over 14 years of service. b. Throughout his military service, the applicant continuously worked hard as evidenced by his promotion to sergeant first class (SFC)/E-7 within 13 years of service. While serving in the military, the applicant dealt with his undiagnosed PTSD and unfortunately elected to self-medicate in order to deal with the stressors that he experienced. The applicant never felt like his command support him when his PTSD was diagnosed. In 2013, he lost a child yet no one within his chain of command ever looked into what would cause an otherwise good Soldier to make such a poor decision. Instead, separation procedures were carried out. c. In 2018, the applicant petitioned the ADRB to modify his inequitable separation. The Board granted relief and changed his narrative reason for separation. d. In 2019, the applicant petitioned the Army Review Board Agency (ARBA) requesting relief. In the Boards findings counsel notes that the original decision is a mere two paragraphs, with no analysis but for general statements. He contests that there is no discussion on the applicant's retirement request, nor other matters he submitted. In addition, the Board provided zero discussion on liberal consideration based on the applicant's PTSD, which the Board should have done. The applicant's request should be considered in the context of liberal consideration, as the only reason he did not promote to the rank of MSG/E-8 was his separation. e. Counsel argues that this Board in evaluating the applicant's separation simply stated that "evidence of record shows the applicant's separation resulted from his misconduct, in which a properly constituted board recommended his separation." This statement disregards the fact that the applicant's misconduct came from self-medicating for undiagnosed combat PTSD. Furthermore, the administrative separation board did not consider the PTSD when separating the applicant, and thus, it is highly questionable that the separation board was "properly constituted." Counsel further argues that the reason the Secretary of Defense (SECDEF) instructed this Board to "liberally consider" PTSD, is that mental health issues impact service member's behavior and action. Prior to all of the traumatic events, the applicant was a model Soldier, being groomed for the future as a Command Sergeant Major. But for his selfless service in going to combat, and death happening all around him, the applicant would not have self-medicated, technically committing misconduct. Therefore, the condition does outweigh the discharge and was exacerbated by the Army. Clearly, without the combat deployment, and other traumatic events, the applicant would have promoted to MSG, and retired. However, the Army did nothing to assist the applicant, and an injustice transpired. Therefore, the applicant is requesting this Board put him where he would have been had he not developed PTSD while serving his country. Thus, the injustice should be rectified by promoting him to MSG and allowing him to retire with appropriate back pay and severance package. 3. A review of the applicant's available service records reflects the following: a. On 23 October 2000, the applicant enlisted in the USAR to serve as a 63J (Quartermaster and Chemical Equipment Repairman). b. On 7 January 2005, the U.S. Army Human Resources Command (HRC) issued Orders Number R-01-570139 ordering the applicant to active duty within the Active Guard/Reserve (AGR) program, effective 8 January 2005. c. On 15 February 2005, HRC issued Orders Number B-02-570761 awarding the 63B (Light Wheel Vehicle Mechanic) Military Occupational Specialty (MOS). d. On 28 June 2012, HRC issued Orders Number B-06-204384 announcing the applicant's promotion to SFC, effective 1 June 2012. e. On 7 August 2012, HRC issued Orders Number B-08-281106 awarding the 91X (Maintenance Supervisor) MOS. f. On 28 January 2015, HRC issued Orders Number C-01-501802 reattaching the applicant to the installation pending separation. g. On 11 February 2015, the applicant was discharged from the Army under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12a (Misconduct - Minor Infractions); Separation code "JKN." At the time of separation, the applicant had completed 10 years, 10 months, and 11 days of active service; 3 years, 5 months, and 8 days of inactive service. 4. The applicant provides the following a: a. DA Form 2166-8 reflective of the applicant's performance as assessed by members of his immediate leadership from September 2008 – February 2013. Throughout this period, the applicant was consistently rated by his rater as "Fully Capable" and or "Among the Best"; Senior Rater recommendation for promotion to the next higher grade. b. DA Form 1059 reflective of the applicant's performance and completion of a variety of military leadership and MOS producing courses. c. DA Form 638 dated 14 September 2007, reflective of the applicant being awarded the Army Achievement Medal for his superior service performed from 8 January 2007 – 9 September 2007. d. Letter of Support reflective of Pastor support of the applicant's ability to continue to serve in the military. Pastor provides that the applicant recognizes that he made a mistake and accepted the consequences for his actions. e. Summarized Administrative Separation Board Proceedings reflective of documentation associated with the separation proceedings conducted in consideration of the applicant's drug use and his potential for retention within the military. The board considered the evidence presented/testimonies provided and recommended that the applicant be discharged from the USAR due to serious misconduct and his separation be characterized as "General Under Honorable Conditions." f. Diplomate American Board of Psychiatry and Neurology letter reflective of the applicant being diagnosed with PTSD, Major Depressive Disorder and Generalized Anxiety Disorder. g. ADRB Docket Number AR20180016060 dated 20 March 2019, reflective of the applicant's request for an upgrade of his characterization of service to reflect "Honorable." The Board determined the discharge was inequitable based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (i.e. post-service diagnosis of PTSD), and a prior period of honorable service. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation code to "JKN." h. Rated Disabilities reflective of the applicant's ratings as determined by the Department of Veterans Affairs. 5. On 8 December 2020, Docket Number AR20190009223, the Board considered the applicant's requested and determined that relief was not warranted. The applicant's contentions, the military record, and regulatory guidance were carefully considered. His record is absent evidence that shows he was selected for promotion to MSG by a promotion selection board. Official promotion and selection boards select members for promotion based upon their performance and potential; the Board does not. The Board may refer records to appear before a special selection board for promotion consideration when there is a clear error or injustice. The Board agreed the request for promotion has no merit as the available evidence does not clearly indicate that the conditions for referring the applicant to a Standby Board was met. Evidence of record shows the applicant's separation resulted from his misconduct, in which a properly constituted board recommended his separation. As a matter of clemency, he received an upgrade of his character of service as a matter of clemency by the ADRB. The Board agreed the rest of the requested relief is not a matter for a clemency determination, and there was no error or injustice in this case. 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 through c counsel 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. Upon review through counsel of the applicant’s petition and available military records, the Board determined the applicant’s records is absent evidence that shows he was selected by a DA selection board for promotion to the grade of MSG/E-8. The Board found no clear error or injustice that would have warranted the applicant being referred to a special selection board (SSB). The Board determined the applicant, and his counsel have not demonstrated by a preponderance of evidence that any procedural error occurred being the applicant was never selected for promotion by a promotion selection board. 2. The Board found insufficient evidence to support the applicant’s counsel request for promotion to master sergeant (MSG)/E-8, retroactive pay from 2015 to present, regular retirement with all benefits and a severance package based on the facts and circumstances. Furthermore, based on regulatory guidance, the Board found there is insufficient evidence to amend the previous Boards’ 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 AR20190009223 on 8 December 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 600-8-19 (Enlisted Promotions and Reductions) Chapter 4 (Centralized Promotions - SFC, MSG, and SGM - 4-2 - Eligibility criteria) states the following eligibility criteria must be met before the HQDA board convenes. a. Soldiers must – (1) Meet announced date of rank (DOR) and basic active service date (BASD) requirements and other eligibility criteria prescribed by Personnel Command (PERSCOM). (2) Have at least six, eight, or ten years of total active Federal service for SFC, MSG, and SGM, respectively. Must have 8 and 10 years of enlisted service creditable in computing basic pay for promotion to MSG and SGM, respectively. (3) Be serving on active duty in an enlisted status on convening date of the selection board. (4) Have a high school diploma or General Educational Development (GED) equivalent, or an associate or higher degree. (5) Not be barred from reenlistment or denied reenlistment through the qualitative screening process under AR 601-280. (6) Not be ineligible to reenlist due to declination of continued service (DCSS), retirement, or court-martial. b. United States Army Reserve and Army National Guard (ARNG) Soldiers must have completed a minimum of one year on active duty immediately prior to the convening date of the board. c. SSG must be a graduate of Basic Noncommissioned Officer Course (BNCOC) or higher Noncommissioned Officer Education System (NCOES) course in order to be considered for promotion to SFC. d. SFC must be a graduate of Advance Noncommissioned Officer Course (ANCOC) to be considered for promotion to MSG. e. Selection boards will recommend a specified number of best qualified Soldiers by MOS from the zones of consideration to meet the needs of the-Army. The total number selected for each career progression MOS is the projected number the Army needs to maintain its authorized-grade strength. Soldiers who are not selected for promotion will not be provided specific reasons for non-selection. 2. AR 635-5 (Separation Documents) in effect at the time prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active-duty service, or control of the Active Army. The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty. It provides a brief, clear cut record of active-duty service at the time of release from active duty, retirement, or discharge. Source documents will consist of separation orders, Enlisted Record Brief (ERB), and any other document authorized for filing in the official military personnel file. Item 4a, enter the active-duty grade or rank and pay grade at the time of separation from the ERB. 3. AR 635-200 (Active Duty Enlisted Administrative Separations) Chapter 12 (Retirement for Length of Service) sets policies and procedures for voluntary retirement of Soldiers because of length of service and governs the retirement of Soldiers (RA, ARNGUS, and USAR) who are retiring in their enlisted status. A Soldier who has completed 20 but less than 30 years of active federal service in the U.S. Armed Forces may be retired at his or her request. 4. Department of Defense Instruction (DODI) 1332.29 Involuntary Separation Pay (ISP) (Non-Disability) provide a lump-sum payment to eligible active and reserve Service members who have completed at least six, but fewer than twenty, years of active service immediately before being involuntarily discharged or denied continuation of service for which they volunteered, short of retirement eligibility a. To qualify for ISP, a Service member must have received an involuntary separation that is characterized as either "honorable" or "general (under honorable conditions)" and is required to agree to serve in the Ready Reserve (Selected Reserve or Individual Ready Reserve) of a Reserve Component for a period of not less than 3 years following the Service member's discharge or release from active duty or active service (AD/AS). This obligation is in addition to any other service obligation of the Service member. b. A Service member who receives ISP and later qualifies for retired pay, retainer pay, or disability compensation (from the Department of Veterans Affairs) will have their retired pay, retainer pay, or disability compensation reduced until the total amount deducted is equal to the total amount of ISP received. Waivers are not authorized for this repayment requirement. c. Full ISP Eligibility: Full payment of non-disability ISP is authorized to Service members of the Active and Reserve Components who has completed at least 6 years, but fewer than 20 years, of AD/AS. For Reserve Service members, 6 years of continuous AD/AS must have preceded immediately before separation. The Service member's separation is characterized as "honorable". d. Half ISP Eligibility: Half payment of non-disability ISP is authorized to Service members of the Active and Reserve Components who has completed at least 6 years, but fewer than 20 years, of AD/AS. For Reserve Service members, 6 years of continuous AD/AS must have preceded immediately before separation. The Service member's separation is characterized as "honorable" or "general (under honorable conditions)." e. Limitations on ISP Eligibility: Service members who separated for performance, misconduct, or other disciplinary reasons are not eligible for ISP. 5. 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 Discharge Review Boards (DRBs) and Board for Correction of Military/Naval Records (BCM/NRs) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including Post Traumatic Stress Disorder (PTSD); Traumatic Brain Injury (TBI); 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. 6. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220008133 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1