IN THE CASE OF: BOARD DATE: 15 November 2023 DOCKET NUMBER: AR20220009558 APPLICANT REQUESTS: * upgrade his discharge from under honorable conditions (general) to honorable * upgrade his narrative reason for separation from “misconduct” to “medical” and the separation code to a corresponding code * medical retirement with back pay to his date of separation APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Brief in Support of Application * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Enlisted Record Brief * Separation Packet with allied documents * Report of Mental Status Evaluation * Physical Profile * Chronological Records of Medical Care * Applicant’s statement * 2019 Department of Veterans Affairs (VA) Rating Decision * VA summary of benefits, letters, and other correspondence * Certificates of Training FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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 undiagnosed PTSD and TBI resulted in misconduct separation when a medical separation would have been appropriate. There was a clear and factual error. 3. The applicant’s counsel speaks of the applicant’s enlistment, service, deployment to and duties in Iraq, medals, and one incident with shooting and killing a boy who was perceived to be a threat in Iraq. Counsel states following this incident, and after taking mid-tour leave, the applicant developed PTSD. While on leave, the applicant found himself isolated from family and friends. Still suffering from the nightmares and trauma of the constant life-threatening attacks from being in theatre, he turned to marijuana use along with heavy drinking to cope. Upon return from leave, he tested positive for illegal drugs, and faced a summary court-martial that reduced him to private/E-1. This was followed by the initiation of separation action against him for misconduct. a. Following his discharge, the applicant was thrown directly back into civilian society suffering from PTSD with no transitioning or anywhere to turn. He struggled to adapt and to cope he again turned to using drugs and alcohol as a form of self- medicating. Although the VA had found him to be 100% service connected for PTSD since the day of discharge he continued struggling with the effects of his service for years. To this day he has completed multiple rehabilitation programs through the Department of Veteran Affairs to include Drug and Alcohol inpatient programming and four PTSD intense inpatient programs. The most recent program being Fort Thomas, KY PTSD Trauma Recovery Unit in 2019. Throughout the years and with continued ongoing counseling the applicant has found a way to adapt to a lifestyle of living with PTSD caused by the trauma. b. Counsel makes the following argument: (1) Material Injustice: The evidence of the applicant’s mental health conditions contributes significantly to the argument that correction of the applicant’s discharge is warranted for reasons of equity to correct a material injustice, especially considering the increased awareness of mental health conditions and how they impact servicemembers. The Hagel Memo established that PTSD and related mental health conditions can be a mitigating factor in misconduct. Furthermore, the Kurta Memo and the Wilkie Memo, further developed the status of mental health conditions as a mitigating factor and emphasized the need for clemency, respectively. (2) The evidence of the applicant’s symptoms of his PTSD, particularly his long battle with substance abuse, supports the argument that correction of the applicant’s military records is warranted to correct a material injustice. The applicant’s own testimony in his written statement as well as the statements made by his treating physicians provide evidence that the applicant was suffering from various mental health issues, including symptoms of PTSD and major depressive disorder that led to his substance abuse and ultimately limited his ability to conform adequately to the standards of the Army. 3. Review of the applicant’s service records shows: a. He enlisted in the Regular Army on 6 March 2002, and he held military occupational specialty 11C, Indirect Fire Infantryman. He was assigned to Fort Riley, KS, and was advanced to private first class/E-3 on 6 March 2003. b. The applicant served in Iraq from 5 April 2003 to 5 April 2004. He was advanced to specialist/E-4 on 1 December 2003. c. On 5 January 2004, in Iraq, the applicant accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice for wrongfully using Methandienone at or near Baghdad, Iraq. His punishment included reduction to private/E-2 and forfeiture of $645.00 pay per month for two months. d. On 5 March 2004, in Iraq, the applicant was convicted by a summary court- martial of one specification of wrongfully using an illegal drug (marijuana). The court sentenced him to reduction to the lowest enlisted grade of private/E-1, forfeiture of $796.00 pay, and confinement for 10 days. e. A DD Form 2707 (Confinement Order) contains a section titled Medical Certificate. In that section, an official indicated the “named inmate was examined by me at 23:45 on 6 March 2004 and was found to be fit.” f. On 8 March 2004, the applicant was seen by social worker at Camp Arifjan Confinement Facility in Kuwait for a mental status evaluation. He was cooperative throughout the entire interview but resented with some signs of unresolved anger. He indicated he had no suicidal or homicidal thoughts or plans to harm self or others. He did not present any serious mental illness. He was cleared psychiatrically for any action deemed appropriate by his chain of command. He was experiencing stressors related to this deployment and his family. He exhibits severe signs and symptoms that are congruent with PTSD. He expressed desire to get help with recent aggression that he displays. g. On 18 June 2004, in Manhattan, KS, the applicant was arrested by civil authorities for Driving Under the Influence of alcohol. He was confined through 19 June 2004. h. A Military Police Report, dated 23 August 2004, at Fort Riley, KS, shows the applicant and another individual for the illegal use of marijuana. i. On 18 October 2004, at Fort Riley, KS, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with AR 635-200 (Active Duty Enlisted Separation), paragraph 14-12c, for misconduct - commission of a serious offense. The commander recommended a general, under honorable conditions discharge. The specific reasons: * wrongfully used methandienone between 12 June and 9 December 2003 * wrongfully used marijuana between 24 September 2003 and 23 October 2003 * tested positive for marijuana and steroid use on 12 May 2004 * arrested for Driving Under the Influence of alcohol on 18 June 2004 * used and possessed marijuana on 23 August 2004. i. On 18 October 2004, the applicant acknowledged receipt of the commander's intent to separate him and subsequently consulted with legal counsel. He was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him. He did not qualify for an administrative board because he had less than 6 years of total service. He further indicated that he understood: * He could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him * He could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge * He could submit a person statement and submitted a statement in which he acknowledged his mistakes and indicated he still wanted to serve his country j. After the applicant’s acknowledgement, the applicant's immediate commander formally initiated separation action against him in accordance with AR 635-200, paragraph 14-12c, for misconduct - commission of a serious offense. His chain of command recommended approval. k. On 20 October 2004, the separation authority approved the applicant’s discharge from the Army and ordered him discharged under the provisions of AR 635-200, chapter 14, by reason of misconduct - commission of a serious offense and directed his service be under honorable conditions (general). On 5 November 2004, the applicant was discharged accordingly. l. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under AR 635-200, chapter 14-12c, by reason of misconduct - commission of a serious offense with an under honorable conditions (general). (Separation Code JKK, Reentry Code 4). He completed 2 years, 7 months, and 18 days of active service and he had lost time from 6 March to 15 March 2003 and from 18 to 19 June 2004. m. On 14 October 2005, the applicant was advised that the Army Discharge Review Board (ADRB) determined that he was properly and equitably discharged. Accordingly, the ADRB denied his request for a change in the character and/or reason of his discharge. n. On 4 February 2009, after careful review of his application, military records, and all other available evidence, the ADRB again determined that he was properly and equitably discharged. Accordingly, the ADRB denied his request for a change in the character and/or reason of your discharge. 5. The applicant provides a statement wherein he talks about his experience in Iraq and the challenges he faced. He reports that due to the immense stressful missions and nature of “WAR”, steroids were being distributed throughout the platoon. Strongly encouraged by leadership. He had partaken in the use of steroids as all young, enlisted members of the platoon did. He talks about his experience/incident with shooting a little boy who was suspected of observing their forward post. He was court-martialed for the use of illegal drugs and was confined in Kuwait. During his incarceration, he developed PTSD related to his incident. He was later diagnosed with PTSD and placed on the non- deployable list. He continued PTSD treatment after his discharge. He blames his injustice on poor leadership within the Army ranks. 6. By regulation, Soldiers are subject to separation under the provisions of paragraph 14-12c of AR 635-200 for a commission of a serious offense. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 7. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 8. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under honorable conditions (general) discharge. In addition, he is requesting his narrative reason for separation from “misconduct” changed to “medical” and the separation code to a corresponding code. He contends he had PTSD and a traumatic brain injury (TBI) that mitigates his misconduct. 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 2002; 2) The applicant served in Iraq from 5 April 2003-5 April 2004; 3) On 5 January 2004, the applicant accepted nonjudicial punishment (NJP) for using Methandienone; 4) On 5 March 2004, the applicant was convicted by a summary court-martial of using marijuana; 5) On 18 June 2004 the applicant was arrested for Driving Under the Influence of alcohol; 6) On 23 August 2004, the applicant was found in possession and using marijuana; 7) The applicant was discharged on 5 November 2004, Chapter 14-12c, by reason of misconduct - commission of a serious offense. His service characterization was under honorable conditions (general); On 14 October 2005 and 4 February 2009, the Army Discharge Review Board (ADRB) reviewed and denied his requests for a change in the character and/or reason of his discharge c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and medical records. The VA’s Joint Legacy Viewer (JLV) and additional hardcopy miliary treatment records provided by the applicant were also examined. d. The applicant asserts he was experiencing PTSD and a TBI as a result of his combat deployment to Iraq. There is clear evidence the applicant was experiencing behavioral health symptoms and the abuse of illegal substances as the result of his combat experiences and stressors at home during his combat deployment. Specifically, on 8 March 2004, the applicant was seen by a military social worker at Camp Arifjan Confinement Facility in Kuwait for a mental status evaluation. He was cleared psychiatrically for any action deemed appropriate by his chain of command, but he was exhibiting severe symptoms of PTSD. The applicant also provided a handwritten note from 04 March 2004 that he was experiencing severe symptoms of PTSD, and he was recommended for treatment at the Combat Support Hospital. e. After returning from deployment, the applicant reported attending psychiatric treatment twice a week for his symptoms of PTSD. However, due to the time of his active service, there is no electronic record of these appointments. The applicant stated his unit was preparing for another deployment, but his treating provider felt he was unable to deploy due to his PTSD symptoms. He provided a temporary psychiatric profile dated 13 October 2004. He was diagnosed with Chronic PTSD and given a rating of “3” under psychiatric conditions. It was recommended he not deploy, go to a field environment, or have access to weapons or firearms. A review of JLV provided evidence the applicant has been diagnosed and treated for service-connected PTSD since his discharge in November 2004. The applicant receives service-connected disability for PTSD (100%). 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 mitigated his misconduct. Yet, there is insufficient evidence the applicant warrants a referral to IDES to assess his appropriateness for a medical discharge. He did have a history of PTSD related to his combat deployment, and he also likely abused illegal substances and alcohol to cope with his negative emotions while on active service. However, there is insufficient evidence the applicant required inpatient psychiatric care, attended a full evidence-based treatment program for PTSD, or was placed on a permanent psychiatric profile. Therefore, there is insufficient evidence at this time that the applicant warrants a referral to IDES from a behavioral health perspective. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant was diagnosed with PTSD while on active service, and he has been diagnosed with service-connected PTSD by the VA. (2) Did the condition exist or experience occur during military service? Yes, the applicant was diagnosed with PTSD while on active service, and he has been diagnosed with service-connected PTSD by the VA. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes, there is sufficient evidence that the applicant was experiencing PTSD while on active service. The applicant also had a history of misconduct associated with alcohol and substance abuse during his military service after returning from his deployment. PTSD can be associated with avoidant behavior. The applicant’s alcohol and substance abuse could be an attempt to self-medicate or to avoid his negative emotional state. Avoidant behaviors are often a natural sequalae to PTSD. However, there is insufficient evidence the applicant warrants a referral to IDES to assess his appropriateness for a medical discharge. He did have a history of PTSD related to his combat deployment, and he also likely abused illegal substances and alcohol to cope with his negative emotions while on active service. However, there is insufficient evidence the applicant required inpatient psychiatric care, attended a full evidence-based treatment program for PTSD, or was placed on a permanent psychiatric profile. Therefore, there is insufficient evidence at this time that the applicant warrants a referral to IDES from a behavioral health perspective 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 insufficient evidence the applicant required inpatient psychiatric care, attended a full evidence-based treatment program for PTSD, or was placed on a permanent psychiatric profile. Therefore, there is insufficient evidence at this time that the applicant warrants a referral to IDES from a behavioral health perspective. The Board agreed there is insufficient evidence that the applicant was not fit for duty from a mental health standpoint. 2. The Board determined the applicant was discharged for misconduct and was provided an under honorable conditions (General) characterization of service. The Board found based on the preponderance of evidence there was insufficient evidence of in-service mitigation to overcome the misconduct. The Board determined 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. Furthermore, the Board found that the narrative reason was not in error or unjust. Based on this, the Board denied relief. 3. The Board determined DES compensates an individual only for service incurred condition(s) which have been determined to disqualify him or her from further military service. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. 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 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 for correction of the records of the individual concerned. 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, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) set forth the basic authority for the separation of enlisted personnel. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors, when taking action on applications from former service members administratively discharged under other than honorable conditions, and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 4. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole, or in part, to: mental health conditions, including PTSD; TBI; sexual assault; sexual harassment. Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge. 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 6. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220009558 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1