IN THE CASE OF: BOARD DATE: 16 March 2023 DOCKET NUMBER: AR20220009868 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Two (2) Army Commendation recommendations and certificate * Medical documents 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, in effect, a. He was assessed by a medical professional and diagnosed with multiple in- service disabilities, with Post-Traumatic Stress Disorder (PTSD) being one of the most severe conditions. His current discharge makes him ineligible to receive Veteran’s Affairs benefits such as medical assistance, disability compensation, and educational benefits. In order for him to be competent in today’s competitive work force environment, he needs access to the educational benefits. b. After his tour in support of Operation Iraqi Freedom (OIF), his medical condition deteriorated. He tried to exit the military properly and was denied several times. He witnessed death of all ages, including the friends he served with. He risked his own life to save several of his service members, while taking the lives of others. 3. The applicant provides: a. DD Form 214, which reflects he was discharged on 29 March 2006, under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b, pattern of misconduct, with a character of service of under other than honorable conditions. He served 2 years, 10 months, and 25 days of net active service this period. Item 18 (Remarks) also shows he served in Iraq from 5 March 2004 to 5 March 2005. b. Two (2) Army Commendation Medal recommendations and certificates as follows: (1) For achievement on 10 November 2004, he distinguished himself through courageous actions during a coordinate enemy attack on a 27th Main Supply Route (MSR) convoy. Award was approved and assigned permanent order number 032-28, dated 1 February 2005. (2) For service for the period of 1 March 2004 to 15 February 2005, while deployed in support of Operation Iraqi Freedom II. Award and certificate were approved, signed, and assigned permanent order number 363-35, dated 28 December 2004. c. Medical documents (31 pages) 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 11 March 2003. b. He was tried by Summary Court-Martial twice, as follows: (1) On 31 August 2005, Plea: Guilty Finding: Guilty (both charges) * Charge I: Violation of UCMJ, Article 107 (False Official Statement) * Charge II: Violation of UCMJ, Article 121 (Larceny) * Sentence: Reduction to the grade of private (PVT)/E-1 and forfeiture of $600.00 (2) On 21 January 2006, Plea: Guilty Finding: Guilty (both charges) * Charge I: Violation of UCMJ, Article 86 (Absent Without Leave (AWOL), from on or about 29 September 2005 until on or about 23 November 2005) * Charge II: Violation of UCMJ, Article 112a (Wrongfully use marijuana between 6 August 2005 and 6 September 2005) * Sentence: Confinement for 27 days and forfeiture of $848.00 c. On 27 January 2006, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of AR 635-200, paragraph 14-12b, for patterns of misconduct. Specifically, for receiving two summary courts-martial on 31 August 2005 and 22 January 2006. The applicant acknowledged receipt of the commander's intent to separate him. d. The applicant’s case separation file is void of his consultation with counsel, which would reflect legal counsel’s advisement of the basis for the contemplated separation action 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 available to him. e. Subsequent to this acknowledgement and consultation with counsel, his immediate commander initiated separation action against him due to a pattern of misconduct, in accordance with AR 635-200, chapter 14-12b. His chain of command recommended approval. f. On 24 March 2006, the separation authority approved the applicant's discharge under the provisions of AR 635-200, paragraph 14-12b, pattern of misconduct, with his service characterized as under other than honorable conditions. g. As previously stated in paragraph 3a above, he was discharged on 29 March 2006, under the provisions of AR 635-200, paragraph 14-12b, pattern of misconduct, with a character of service of under other than honorable conditions. He served 2 years, 10 months, and 25 days of net active service this period. 5. U.S. Army Criminal Investigation Command memorandum, dated 2 November 2022, Subject: Request for Sanitized Reports of Investigations (ROIs) and Military Police Reports, states, “a search of the Army criminal file indexes utilizing the information you provided revealed no records pertaining to the applicant. You are advised that records at this center are Criminal Investigative and Military Police Reports and are indexed by personal identifiers such as names, social security numbers, dates and places of birth and other pertinent data to enable the positive identification of individuals.” 6. AR 635-200 states action will be taken to separate a member for a pattern of misconduct. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 7. Hagel Memorandum, dated 3 September 2014, states liberal consideration will be given in petitions for changes in characterization of service to service treatment records entries which document one or more symptoms which meet the diagnostic criteria of PTSD or related conditions. Special consideration will be given to VA determinations which documents PTSD or PTSD related conditions connected to military service. In cases in which PTSD or PTSD related conditions may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service. 8. 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. 9. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting an upgrade of his 29 March 2006 under other than honorable conditions discharge stating the misconduct which lead to his convictions and discharge were due to PTSD, other mental health conditions, and sexual assault / harassment. Stated on his DD form 149: “The service member was assessed by a medical professional and diagnosed with multiple in-service disabilities. PTSD being one of the most severe conditions. Per the service member’s discharge, the current decision doesn't make the veteran eligible nor entitled to any medical assistance, or disability compensation. The veteran is also in need of his educational benefits to be competent in today’s competitive work force environment. Per the information we have provided this service member has experienced a severe traumatic event. After his tour in Operation IRAQI Freedom (OEF) his medical condition deteriorated. He tried to exit the military properly and was denied several times, even though had medical information to let him be resigned under Honorable Conditions.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 for the period of service under consideration shows he entered the active duty on 11 March 2003 and was discharged on 29 March 2006 under the separation authority provided by paragraph 14-12b of AR 635-200, Active Duty Enlisted Administrative Separations (6 June 2005): Pattern of Misconduct. His DD 214 shows Service in Iraq form 5 March 2004 thru 5 March 2005. It shows 55 days lost under 10 USC § 972 (20050929 – 20551122). c. At a Summary Court-Martial on 31 August 2005, the applicant pled guilty to and was found guilty of making a false official statement and larceny. At a Summary Court- Martial on 21 January 2006, the applicant pled guilty to and was found guilty of a period of absence without leave from 29 September thru 23 November 2005 and wrongful use of marijuana. d. On 27 January 2006, his company commander recommended he be separated from the Army under paragraph 14-12b of AR 635-200 for the above noted UCMJ violations. The commanding general of the 1st Cavalry Division directed the applicant be discharged with an under other than honorable conditions characterization of service and he be reduced in rank to Private (E1). e. The applicant has just 6 encounters in AHLTA, all between 24 January – 14 February 2006. Five of these are mental health encounters. His first encounter shows he was diagnosed with adjustment disorder with depressed mood while an inmate “in after a Summarized Court Martial.” From the second encounter on 1 February 2006: “SM {service Member} reports depressive mood and intrusive war memories and states he cannot stand to be in the military anymore. SM states he went AOWL and returned after one month (November 2005). SM states he warned his supervisors but they did not listen to him. SM states he attempted suicide before returning (overdose on Tylenol). SM admits to regular use of marijuana after re- deployment due to his inability to handle his depressed mood. SM also reports poor sleep, low energy, anhedonia, lack of motivation.” f. His final behavioral health encounter on 14 February 2006 was his pre-separation mental status evaluation. The provider documented a normal examination and went on to opine: “The evaluation revealed no evidence of altered thought process or any other mental health condition that would explain the behavior that resulted in the initiation of this administrative action. The soldier specifically denied any current suicidal and homicidal ideations. He is psychologically cleared for any administrative action deemed appropriate by command.” g. Submitted medical documentation shows the applicant has received care at a Vet Center for PTSD in 2009 - 2010. h. JLV shows the applicant is eligible to receive care at Veteran’s Hospital Administration facilities as a service-connected Veteran and has a service-connected disability rating of 0% for PTSD. Kurta Questions: A. Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant has been diagnosed with a potentially mitigating BH condition, PTSD. B. Did the condition exist or experience occur during military service? Yes C. Does the condition or experience actually excuse or mitigate the discharge? Partially: As there is a nexus between PTSD and difficulty with authority figures, avoidant behaviors, and self-medicating with illicit substances, his PTSD mitigates his period of absence without leave and marijuana use. However, PTSD does not mitigate the applicant’s making a false official statement or larceny as the condition does not interfere with one’s ability to distinguish between right and wrong and act in accordance with the right. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service to include deployment, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's PTSD claim and the review and conclusions of the ARBA Medical Advisor. 2. The Board concurred with the conclusion of the medical advising official regarding his misconduct being partially mitigated by PTSD. Considering that it was his second court-martial conviction that triggered the action to separate him and considering that the offenses of which he was found guilty at the second court-martial are fully mitigated by PTSD, the Board found clemency to be appropriate in this case. Based on a preponderance of evidence, the Board determined the applicant’s character of service should be changed to under honorable conditions (general). 3. The Board concurred with the correction described in Administrative Note(s) below. 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: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing his DD Form 214 to show his character of service as under honorable conditions (general) and to incorporate the correction described in Administrative Note(s) below. 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 an honorable character of service. 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. ADMINISTRATIVE NOTE(S): A review of the applicant’s record shows his DD Form 214 should be amended by adding the Army Commendation Medal (2nd Award). REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14, of the version in effect at the time, 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, and convictions by civil authorities. It provided that 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. However, the separation authority could direct an honorable discharge if merited by the Soldier's overall record. 3. Hagel Memorandum, dated 3 September 2014, states liberal consideration will be given in petitions for changes in characterization of service to service treatment records entries which document one or more symptoms which meet the diagnostic criteria of PTSD or related conditions. Special consideration will be given to VA determinations which documents PTSD or PTSD related conditions connected to military service. In cases in which PTSD or PTSD related conditions may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220009868 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1