IN THE CASE OF: BOARD DATE: 2 May 2023 DOCKET NUMBER: AR20220009696 APPLICANT REQUESTS: Reconsideration of his previous request for an upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 AR20200005853 on 19 October 2021. 2. As a new argument the applicant states he became depressed because of his mistreatment. He was told that he would be there another year and he would not like it. He was singled out and made an example of in front of everyone. The applicant did not submit a statement in support of his request. 3. The applicant enlisted in the Regular Army on 11 March 1997. He attended training in military occupational specialty (MOS) 91B (Medical Specialist). He was not awarded a MOS. 4. The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on/for: * 27 June 1997 - failure to follow order or regulation-smoking; his punishment consisted of extra duty, and restriction * 11 July 1997 - without authority being absent from his place of duty on or about 28 June 1997, 6 July 1997, 7 July 1997 and specifically fireguard on one occasion, extra duty on two occasions * 25 November 1997 - without authority failing to go at the time prescribed to his appointed place of duty on or about 5 November 1997; disobeying a noncommissioned officer (NCO) on two occasions on or about 4 November 1997, being disrespectful to an NCO on or about 5 November 1997, and for being drunk on or about 4 November 1997; his punishment consisted of forfeiture of $210.00, restriction, and extra duty * 20 January 1998 - being absent without leave (AWOL) on or about 7 January 1998 and remained absent until on or about 8 January 1998; his punishment consisted of forfeiture of $467.00 for two months, restriction, and extra duty 5. A Standard Form 558 (Emergency Care and Treatment), shows the applicant received command directed emergency care and treatment for alcohol use. 6. The Army Drug and Alcohol Prevention Control Program (ADAPCP), Patient Intake/Screening Record, shows the applicant was medically referred for alcohol dependence and enrolled in the ADAPCP. 7. The applicant was referred by command in accordance with Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), Chapter 14, for misconduct. He was evaluated at Community Mental Health Service, Brooke Army Medical Center, TX. The health record shows: a. The chief clinical psychologist diagnosed him with adjustment disorder with depressed mood, alcohol abuse, and low back pain. He further stated there was no evidence of mental defect, emotional illness, or psychiatric disorder of sufficient severity to warrant disposition through military medical channels. b. The applicant was mentally responsible for his behavior, could distinguish right from wrong, and possessed sufficient mental capacity to understand and participate intelligently as a respondent in any administrative proceedings. He was psychiatrically cleared for administrative separation. c. The applicant graduated from the 91B (Medical Specialist) course in August 1997 but because of back problems, was being processed for a medical board. The applicant wished to be administratively separated from the military rather than being processed for a medical board. 8. The applicant’s immediate commander notified him on 3 February 1998, of his intent to initiate separation action against him under the provisions of AR 635-200, paragraph 14-12b, for a pattern of misconduct, and notified him of his rights. The specific reasons for his proposed action were the applicant's NJPs and numerous negative counseling statements. His commander recommended his service be characterized as UOTHC. 9. The applicant acknowledged receipt of his commander's separation notification on 3 February 1998. He consulted with counsel and was advised of the basis for the contemplated separation against him, its effect, and his rights. He elected not to submit statements in his own behalf. 10. The applicant’s immediate commander formally recommended the applicant's separation under the provisions of AR 635-200, paragraph 14-12b, for a pattern of misconduct. The applicant’s chain of command recommended approval with his service characterized as UOTHC. 11. The separation authority approved the applicant's discharge on 16 March 1998, and directed the issuance of an UOTHC Discharge Certificate. 12. The applicant was discharged on 19 March 1998. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR, paragraph 14-12b, due to misconduct. His service was characterized as UOTHC, Separation Code JKA and Reentry Code 3). He completed 1 year and 9 days of net active service. He lost time from 7 January 1998 to 7 January 1998, and 11 January 1998 to 12 January 1998. 13. On 2 November 2012, the Army Discharge Review Board determined the applicant was properly and equitable discharged and denied his request for a change in the character and/or reason of his discharge. 14. On 19 October 2021, the ABCMR determined the evidence presented did not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case were insufficient as a basis for correction of the applicant’s records. a. A Medical Review was done in conjunction with this case. The Medical Review shows Department of Veterans Affairs (VA) health notes supplied by the applicant show there was no formal DSM 5 diagnosis of post-traumatic stress disorder (PTSD). There are references the applicant mentions a history of PTSD, and comments in the notes that indicate PTSD like symptoms. His screening instruments for PTSD are consistently low, indicating that PTSD symptoms are NOT present. Joint Legacy Viewer (JLV) contains Behavioral Health (BH) diagnoses of Major Depression and PTSD. b. An encounter dated 24 March 2020 notes, “Veteran reported that he experienced a lot of emotional and verbal abuse on the behalf of his superiors while serving in the military.” His PTSD screening score of 2 indicates, “The score for this administration is 2, which indicates a NEGATIVE screen for PTSD in the past month.” While the applicant is diagnosed with PTSD, medical records do not indicate the etiology of this diagnosis. At the time of his discharge, he was diagnosed with adjustment disorder which would not be mitigating for his infractions listed above. The VA has since diagnosed the applicant with PTSD and the Board must therefore apply liberal consideration in determining BH mitigation. The applicant did meet retention standards at the time of discharge. The applicant does not have a service connection. 15. In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 16. MEDICAL REVIEW: a. The applicant requests reconsideration of his previous request for upgrade of his under other than honorable conditions (UOTHC) discharge. He contends his misconduct was related to Other Mental Health Issues. 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 into the Regular Army on 11 March 1997. He attended training in military occupational specialty (MOS) 91B (Medical Specialist). He was not awarded a MOS. (2) The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on/for: * 27 June 1997 - failure to follow order or regulation-smoking; his punishment consisted of extra duty, and restriction * 11 July 1997 - without authority being absent from his place of duty on or about 28 June 1997, 6 July 1997, 7 July 1997 and specifically fireguard on one occasion, extra duty on two occasions * 25 November 1997 - without authority failing to go at the time prescribed to his appointed place of duty on or about 5 November 1997; disobeying a noncommissioned officer (NCO) on two occasions on or about 4 November 1997, being disrespectful to an NCO on or about 5 November 1997, and for being drunk on or about 4 November 1997. * 20 January 1998 - being absent without leave (AWOL) on or about 7 January 1998 and remained absent until on or about 8 January 1998. (3) The applicant’s immediate commander notified him on 3 February 1998, of his intent to initiate separation action against him under the provisions of Army Regulation 635-200, paragraph 14-12b, for a pattern of misconduct. (4) The applicant was discharged on 19 March 1998. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation, paragraph 14-12b, due to misconduct. c. The military electronic medical record, AHLTA, was not reviewed as it was not in use during the applicant’s time in service. Included in the applicant’s case file was a SF 600 (Chronological Record of Medical Care) dated 23 January 1998, that showed the applicant was command referred for a Mental Status Evaluation and diagnosed with Adjustment Disorder with Depressed Mood, Alcohol Use Disorder, and Low Back Pain. The provider noted the applicant having reportedly been depressed over the past several months and followed in CMHS for therapy and medication management. It was also noted the applicant was referred to ADAPCP in November 1997. Additionally, it was noted the applicant was being referred for a medical board due to low back pain but instead wanted to be administratively separated rather being processed for medical board. The applicant was psychiatrically cleared to participate in any administrative proceedings deemed necessary. d. Also included in the case file was a DA Form 4465-R (Patient Intake/Screening Record), dated 18 November 1997, that showed the applicant enrolled in the ADAPCP with a diagnosis of Alcohol Dependence, and a DA Form 4466-R (Patient Progress Report) dated 21 January 1998, that showed the ADARP counselor found the applicant’s progress in the program unsatisfactory and recommended terminating treatment and separating the applicant from service. The form also showed the applicant’s commander appraising his performance and conduct as unacceptable and, electing the applicant’s treatment be terminated and the applicant separated from service. e. A review of the VA electronic medical record, JLV, shows the applicant 0 percent service-connected for Major Depressive Disorder, and VA C&P examinations show the applicant diagnosed with Chronic Adjustment Disorder and Alcohol Use Disorder (3 December 2019), Major Depressive Disorder (21 May 2022), and PTSD secondary to MST (18 April 2023), all with symptom onset during AIT. It should be noted the applicant also underwent a VA C&P Evaluation on 12 January 2021, for possible PTSD and was found NOT to meet diagnostic criteria. The applicant did not mention MST during the 12 January 2021 examination or any of the examinations previous to the 18 April 2023. f. Records suggest the applicant’s first BH-related engagement with the VA occurred at the VA on 3 December 2019 whereby he underwent a VA C&P Examination. The applicant complained of sad mood, anhedonia, poor sleep, fatigue, changes in appetite, feeling of helplessness and worthlessness, nervousness, irritability, anger, and feelings of foreboding, with symptom onset occurring while in AIT. He reported a military diagnostic history of MDD and Alcohol Use Disorder, secondary to harassment from Drill Sergeants (DS) while on medical hold, in AIT. The applicant was diagnosed with MDD recurrent moderate. Records suggest the applicant was next seen on 24 March 2020 complaining of struggles with trauma and depressive symptoms that had gotten progressively worse over the past few months, subsequent to getting divorced two months ago. He shared that he tends to feel hypervigilant, agitated, numb, and withdrawn from others on more days than not and indicated having difficulties with trust. He acknowledged that he constantly worries about death and dying (i.e., no current SI, intent, or plan) and experiences nightmares on a nightly basis. He also endorsed avoiding crowds and being easily triggered by loud noises and experienced frequent panic attacks. He was diagnosed with PTSD and MDD recurrent, moderate and scheduled for outpatient treatment. It should be noted that the applicant’s PTSD screening scale score during the session was 2 which indicates a negative screen. Also, there was no clear indication of a specific criteria A traumatic reported. g. The applicant was seen for a psychiatric intake on 23 June 2020, during which time he reiterated the history and symptoms presented during the psychology intake. He was diagnosed with MDD recurrent, Alcohol Use Disorder, and noted to have PTSD- like symptoms. He was prescribed psychotropic medication and scheduled for outpatient follow-up. Records suggest the applicant engaged in outpatient treatment from June 2020 through December 2020 on an intermittent basis with fair progress. h. On 12 January 2021 the applicant underwent a C&P Examination for PTSD and was found not to meet diagnostic criteria for the disorder, as his reported criteria A trauma of being yelled at by DS in front of others did not meet diagnostic criteria. He was instead diagnosed with Adjustment Disorder with Depressed Mood, and Alcohol Use Disorder. The applicant’s next encounter appears to have occurred on 6 December 2021 where he reported losing his temper and punching a friend of the family. He reported alcohol involvement, his subsequent feelings of regret, and a renewed desire re-engage in treatment. Encounter notes with the applicant’s psychologist, dated 8 February 2021 and 22 March 2021, showed the applicant reporting significant symptom improvement, weight loss, reduced alcohol intake and smoking, and better overall wellbeing. However, during his encounter with his psychiatrist, on 21 March 2021, the applicant complained of continued struggles with PSTD and depression and discussed having regrets for not getting medically discharged. i. On 21 May 2022 the applicant underwent another VA C&P Examination, during which time he was diagnosed with MDD and Substance Use Disorder, with symptom onset deemed to have occurred while the applicant was in AIT and secondary to a physical injury and persistent verbal harassment by his DS. Records suggest that subsequent the C&P Examination the applicant engaged in outpatient treatment on 29 August 2022 (psychiatry) whereby he reported doing slightly better but still struggling with some feelings of worthlessness and hopelessness, and on 12 September 2022 (psychology), whereby he reported significant improvements. Psychology encounter note, dated 8 November 2022, showed the applicant reported experiencing a lot of hypervigilance over the past couple of weeks as he had reportedly put pieces together related to an MST he experienced during AIT. He added that he didn’t realize for many years how much it affected him and impacted his life. He acknowledged that he had been feeling angry and shared that he had also been navigating an overall sense of powerlessness. The therapist provided psychoeducation about MST and its long-lasting effects. The applicant reportedly shared that the descriptions of symptoms matched his internal experiences. j. The applicant’s next encounter appears to have occurred on 20 March 2023, during which time the applicant informed his psychiatrist that he’d finally been able to discuss with his psychologist his MST. The applicant also discussed an increase in trauma symptoms to include flashbacks, moderate avoidance, and distress. On 18 April 2023 the applicant underwent a C&P Examination for PTSD and found to meet diagnostic criteria for PTSD secondary to MST experienced during AIT. The applicant reported having befriended a female superior who provided him alcohol and subsequently sexually assaulted him. He was reportedly repeatedly forced to get a hotel room off-post for sexual encounters with her and was threatened that she would turn him in for adultery and inform his spouse of the affair if he did not comply. He reportedly complied out of fear and increased alcohol and nicotine consumption to deal with the related stress. Additionally, he reported his instances of AWOL were due to being at the hotel with the female superior. k. The applicant contends his misconduct was related to Other Mental Health Issues. A review of the records shows the applicant was diagnosed with Adjustment Disorder and Alcohol Use Disorder during service and Adjustment Disorder, MDD, PTSD/MST, and Alcohol Use Disorder post-service for which he is service-connected for treatment only, due to his discharge characterization. The symptoms onset for all the diagnoses reportedly began during AIT, subsequent to injury, verbal assault by DS’s, and MST involving a female superior whom the applicant reportedly developed a friendship but was subsequently sexually abused by repeatedly, as outline elsewhere in this opine. As there is a relationship between PTSD/MST and problems with authority, avoidance, and use of substances to self-medicate, there is a nexus between the applicant’s diagnosis of PTSD/MST and his misconduct. As such, the applicant’s misconduct is mitigated by PTSD, secondary to MST. It should be noted the applicant underwent two VA C&P Examinations evaluating PTSD. The first occurred on 12 January 2021 and found the applicant did not meet criteria for PTSD, due to his reported trauma characterized by being yelled at and harassed by DS did not meet criteria A for PSTSD. The applicant made no mention of MST during that examination or any of the other C&P Examinations that occurred prior to the 18 April 2023 examination. l. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence in the records that the applicant had a condition or experience during his time in service that mitigated his misconduct. 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 is 0 percent service-connected for PTSD/MST, MDD, Adjustment Disorder, and Alcohol Use Disorder, with symptom onset in AIT. (2) Did the condition exist or experience occur during military service? Yes. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The applicant contends his misconduct was related to Other Mental Health Issues. A review of the records shows the applicant was diagnosed with Adjustment Disorder and Alcohol Use Disorder during service and Adjustment Disorder, MDD, PTSD/MST, and Alcohol Use Disorder post-service for which he is service-connected for treatment only, due to his discharge characterization. The symptoms onset for all the diagnoses reportedly began during AIT, subsequent to injury, verbal assault by DS’s, and MST involving a female superior whom the applicant reportedly developed a friendship but was subsequently sexually abused by repeatedly, as outline elsewhere in this opine. As there is a relationship between PTSD/MST and problems with authority, avoidance, and use of substances to self-medicate, there is a nexus between the applicant’s diagnosis of PTSD/MST and his misconduct. As such, the applicant’s misconduct is mitigated by PTSD, secondary to MST. It should be noted the applicant underwent two VA C&P Examinations evaluating PTSD. The first occurred on 12 January 2021 and found the applicant did not meet criteria for PTSD, due to his reported trauma characterized by being yelled at and harassed by DS did not meet criteria A for PSTSD. The applicant made no mention of MST during that examination or any of the other C&P Examinations that occurred prior to the 18 April 2023 examination. BOARD DISCUSSION: After reviewing the application, the Board found that relief was partially warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was discharged due to misconduct – a pattern of misconduct. The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding sufficient evidence of in-service mitigating factors to overcome the misconduct. Based on a preponderance of evidence, the Board determined that the applicant’s service did not rise to the level required for an honorable characterization of service; however, a general discharge is appropriate under published DoD guidance for liberal consideration of discharge upgrade requests. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in AR20200005853 on 19 October 2021. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 19 March 1998 showing his character of service as Under Honorable Conditions, General. * Separation Authority: No Change * Separation Code: No Change * Reentry Code: No Change * Narrative Reason for Separation: No Change 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of discharge to honorable. 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 1556, provides the Secretary of the Army shall ensure that an applicant seeking corrective action by ARBA is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 2. Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: 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. c. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. 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 considered appropriate. However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record. 3. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 4. On 25?August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; Traumatic Brain Injury; sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 5. The Under Secretary of Defense (Personnel and Readiness) issued guidance to Service DRBs and Service BCM/NRs on 25 July 2018 [Wilkie Memorandum], regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220009696 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1