IN THE CASE OF: BOARD DATE: 28 July 2023 DOCKET NUMBER: AR20230000296 APPLICANT REQUESTS: in effect, his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect: * Item 24 (Character of Service): honorable vice under honorable conditions (general) * Item 26 (Separation Code): something else vice JKA * Item 28 (Narrative Reason for Separation): medical discharge vice misconduct * also, a personal appearance before the Board via video/telephone APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (DVA) letter, 16 September 2022 * Statement in support of claim, J.M.B. * Statement in support of claim, C.V. (sister) * Witness statement, J.D.B. 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 he would like his separation changed to service-connected disability and his general discharge changed to honorable discharge. He was recently diagnosed with post-traumatic stress disorder (PTSD) and just received a 50% disability rating form the VA. After the incident that occurred at Fort Devens he started acting out and drinking a lot to cope with the assault. He was just trying to survive, and this greatly affected his ability to serve. He struggled with severe untreated depression and PTSD and was separated for misconduct when in fact he was acting out trying to deal with what was going on. He has now been sober 6 years; try to be the best father he can be to his son and be as helpful to others as he can be. He had no idea he was suffering from PTSD until a few months ago, once he started talking to his psychologist who was able to connect the dots and was finally able to get the help he needed. He saw that his discharge was due to untreated PTSD which caused his misconduct. He tried to do his best in the Army but because of the undiagnosed and untreated issues he was having he was separated with a general discharge for misconduct. 3. The applicant enlisted in the Regular Army on 24 November 1992. He held military occupational specialty 94B (Food Service Specialist). 4. He received non-judicial punishment (NJP) on 28 July 1994, for on or about 24 July 1994, without authority, fail to go at the time prescribed to his appointed place of duty (dining facility) and found drunk on duty. 5. He received NJP on 1 September 1994, for on or about 19 August 1994, without authority, fail to go at the time prescribed to his appointed place of duty (work call). He was reduced to private/E-1. 6. On 28 September 1994, a Report of Mental Status Evaluation was conducted which shows his behavior as normal, he was fully alert, fully oriented, his mood or affect was unremarkable, thinking process was clear, his thought content was normal, and memory was good. In the physician s opinion the applicant had the mental capacity to understand and participate in the proceedings. 7. On 28 September 1994, a Report of Medical History was completed which shows he was in alcohol rehab located in Newport Naval Base, Newport, RI, from 24 October 23 November 1993. Also, he had a head injury 1 year ago in which he had sutures no sequel. Also, a Report of Medical Examination shows he was qualified for separation. 8. On 4 October 1994, his immediate commander, initiated action to separate him for patterns of misconduct. The reason for his proposed action was on 24 July 1994, he was late for duty and subsequently found drunk on duty in which he received summarized NJP and on 19 August 1994, he was late for duty and received company grade NJP, on 16 September 1994 he was late for duty, and on 29 September 1994, he broke restriction, were late for duty, and found drunk on duty. 9. On 4 October 1994, the applicant acknowledged receipt of the proposed action initiated against him. Having been advised by consulting counsel of the basis for the contemplated action to separate him for patterns of misconduct under Army Regulation (AR) 635-200 (Personnel Separations Enlisted Personnel), Chapter 14, and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights. He understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him. 10. On 4 October 1994, his commander recommended that he be separated from the Army prior to expiration of the applicant s term of service. 11. On 5 October 1994, his intermediate commander recommended that he be separated under the provisions (UP) of AR 635-200, chapter 14, for patterns of misconduct. He recommended the applicant s service be characterized as general, under honorable conditions. 12. On 11 October 1994, the separation authority approved the recommendation for separation UP of AR 635-200, chapter 14, for patterns of misconduct. He directed the applicant s service be characterized as general, under honorable conditions. 13. Accordingly, the applicant was discharged on 20 October 1994, UP of AR 635-200, chapter 14, paragraph 14-12b. His DD Form 214 shows he completed 1 year, 10 months, and 27 days of net active service this period. His DD Form 214 also shows: * Item 24: Under honorable conditions (general) * Item 26: JKA * Item 28: Misconduct 14. On 10 October 1997, after careful consideration of the applicant s military records and all other available evidence, has determined that he was properly and equitably discharged. Accordingly, the Secretary of the Army has directed that his request for a change in the character and/or reason of your discharge has been denied. 15. The applicant provides: a. DVA letter, 16 September 2022, showing the applicant has 50% combined disability rating effective 1 May 2022. b. Statement in support of claim, J.M.B. describing the incident in which the applicant was assaulted at Fort Devens, MA, in the summer of 1993. (The entire statement is attached in documents for review). c. Statement in support of claim, C.V. (sister) describing their sibling childhood. She noticed a change in his personality after he came home from the Army. He drank a lot and was not fun to be around. He would have night terrors and did not sleep much. (The entire statement is attached in documents for review). d. Witness statement, J.D.B. a childhood friend that also was in the Army. He recalled another Soldier notifying him that the applicant was assaulted. The applicant was not the same after his time in the Army. (The entire statement is attached in documents for review). 16. There is no evidence nor did the applicant provide any evidence that he had any conditions that were unfitting and resulted in a medical evaluation board or physical evaluation board. 17. By regulation (AR 635-200), chapter 14 establishes policy and prescribes procedures for separating members for misconduct. 18. In reaching its determination, the Board can consider the applicant's petition, his statements, and available service record, in light of the published Department of Defense guidance on equity, injustice, or clemency. 19. 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. 20. 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. 21. Title 38, CFR, Part IV is the VA s schedule for rating disabilities. The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the DVA, 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 DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 22. MEDICAL REVIEW: a. The applicant requests, in effect, upgrade of his under honorable conditions, general, discharge, to honorable, change to his Narrative Reason for Separation, and changes to his Separation Code. He contends his misconduct was related to PTSD. 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 24 November 1992; 2He received non- judicial punishment (NJP) on 28 July 1994, for on or about 24 July 1994, without authority, fail to go at the time prescribed to his appointed place of duty (dining facility) and found drunk on duty; 3) He received NJP on 1 September 1994, for on or about 19 August 1994, without authority, fail to go at the time prescribed to his appointed place of duty (work call); 4) On 4 October 1994, his commander recommended that he be separated from the Army prior to expiration of the applicant s term of service; 5) On 11 October 1994, the separation authority approved the recommendation for separation UP of AR 635-200, chapter 14, for patterns of misconduct; 6) Accordingly, the applicant was discharged on 20 October 1994, UP of AR 635-200, chapter 14, paragraph 14-12b c. The VA electronic medical record (JLV), ROP, casefiles, and the applicant s personnel files were reviewed. 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 casefile was a Report of Mental Status Examination, dated 28 September 1994, that found the applicant s behavior normal, mood and affect unremarkable, thinking process clear, memory good, and that the applicant had the mental capacity to understand and participate in proceeding. Also included in the casefile was a Report of Medical History, dated 28 November 1994, that showed the applicant was enrolled in an alcohol rehabilitation program from 24 October 23 November 1993, had a head injury during his time in that required sutures, and that he was deemed medically qualified for separation. No other military BH-related records were provided for review. d. A review of JLV showed the applicant 70 percent SC for PTSD. VA C&P Examination dated 17 August 2022 showed the applicant diagnosed with PTSD secondary to being physically assaulted during initial entry training. Reported symptoms at the time of evaluation included intrusive memories, flashbacks, nightmares, avoidance, hyper-arousal, a sense of impending doom, and other panic-like symptoms. The examiner determined the applicant endorsed symptoms sufficient to meet diagnostic criteria for PTSD and that it was more likely than not related to military service. Records suggest the applicant first engaged with the VA for BH-related treatment on 21 September 2022 at the Salt Lake City, UT, VA whereby he reported currently receiving treatment with a non-VA provider but was interested to see what other PTSD treatment options were provided through the VA. He was provided information and encouraged to contact the clinic. Records showed the applicant attended Start Point group PTSD orientation sessions on 29 September 2022 and 30 November 2022, and began individual treatment for PTSD with the Start Point program on 8 December 2022. Records suggested the applicant engaged in two PTSD individual treatment sessions (9 December 2022 and 9 January 2023) before voluntarily discontinuing. The last BH-related encounter in JLV is dated 7 April 2023 and showed the applicant reported being unsure if he wanted to re-engage in Prolonged Exposure Therapy at the VA, given his work with his community provider was going well. e. The applicant requests upgrade of his under honorable conditions, general, discharge to honorable, and changes to his separation code and narrative reasons for separation. He contends his misconduct was related to PTSD. A review of the records was void of any BH diagnosis or treatment history during service. Post-service records showed him 70 percent SC for PTSD secondary to assault endured during initial entry training. The applicant s misconduct was characterized by failure to report/repair and being drunk on duty. As there is an association between PTSD and comorbid substance abuse, avoidant behavior, and problem with authority figures, there is a nexus between his disorder and misconduct, such that his PTSD was a mitigating factor in his misconduct. Regarding the applicant s requests, it is the opinion of this advisor that there is sufficient evidence to support an upgrade of his discharge to an honorable characterization of service. It is the opinion of this advisor that there is insufficient evidence to support a medical discharge, except Medical Not a Disability, as there is no documentation that the applicant did not meet medical retention standards at the time of separation. As it relates to separation codes, if the Boards elects to upgrade the applicant s discharge characterization to honorable, after considering his mitigating factors of PTSD, it would also be reasonable to consider a change in separation code to reflect something other than misconduct. f. 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. (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant is 70 percent SC for PTSD (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. A review of the records was void of any BH diagnosis or treatment history during service. Post-service records showed him 70 percent SC for PTSD secondary to assault endured during initial entry training. The applicant s misconduct was characterized by failure to report/repair and being drunk on duty. As there is an association between PTSD and comorbid substance abuse, avoidant behavior, and problem with authority figures, there is a nexus between his disorder and misconduct, such that his PTSD was a mitigating factor in his misconduct. Regarding the applicant s requests, it is the opinion of this advisor that there is sufficient evidence to support an upgrade of his discharge to an honorable characterization of service. It is the opinion of this advisor that there is insufficient evidence to support a medical discharge, except Medical Not a Disability, as there is no documentation that the applicant did not meet medical retention standards at the time of separation. As it relates to separation codes, if the Boards elects to upgrade the applicant s discharge characterization to honorable, after considering his mitigating factors of PTSD, it would also be reasonable to consider a change in separation code to reflect something other than misconduct. BOARD DISCUSSION: 1. The applicant's request for a personal appearance 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 before the Board is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application, all supporting documents and the evidence found with in the military records, the Board determined relief was warranted. The Board carefully considered the applicant s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the frequency and nature of the misconduct, the reason for separation and whether to apply clemency. The Board considered denying the request based on the pattern of misconduct; however, the Board found sufficient evidence of mitigating circumstances to outweigh the misconduct and warrant a recommendation for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :xx :xx : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : xx DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant a new DD Form 214 for the period ending for the period ending 6 June 1996 showing in: * item 24 (Characterization of Service): Honorable * item 26 (Separation Code): JFF * item 28 (Narrative Reason for Separation): Medical Not a Disability 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 (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. 3. AR 635-200 (Personnel Separations-Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 14 (Separation for Misconduct) deals with separation for various types of misconduct, which includes drug abuse, and states that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. The regulation in effect at the time stated individuals in pay grades E-5 and above could be processed for separation upon discovery of a drug offense. Those in pay grades below E-5 could also be processed after a first drug offense and must have been processed for separation after a second offense. The issuance of a discharge under other than honorable conditions was normally considered appropriate. a. Paragraph 3-7a states 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(1) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-7b(2) states a characterization of under honorable conditions may be issued only when the reason for the member's separation specifically allows such characterization. It will not be issued to members upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. d. Paragraph 14-12b pattern of misconduct consisting of: (1) Discreditable involvement with civil or military authorities. (2) Conduct prejudicial to good order and discipline. Discredit able conduct and conduct prejudicial to good order, and discipline includes conduct violative of the accepted standards, of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army. 4. 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. 5. AR 635-40 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. 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. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 7. Title 38 U.S. Code 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. 8. Title 38 U.S. Code 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. 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. Title 10, U.S. Code, section 1556 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) AR20230000296 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1