IN THE CASE OF: BOARD DATE: 11 August 2023 DOCKET NUMBER: AR20230000405 APPLICANT REQUESTS: an upgrade of his under honorable conditions characterization of service and an appearance before the Board. 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) for the period ending 22 August 2014 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 his actions were the result of the stressors of war. He has combat related post-traumatic stress disorder (PTSD) as a result of coping with combat and losing his father the day he returned from Iraq. 3. The applicant enlisted in the Regular Army on 4 November 2009. He served in Iraq from 3 June 2011 to 28 August 2011. 4. He reenlisted on 12 October 2012 for a 3-year period. He served in Kosovo from 15 May 2013 to 3 February 2014. 5. Military Police Report (MPR) Number 00840-2014-MPC023, shows the applicant was apprehended by a Cumberland County, NC, deputy on 17 February 2014 for speeding and impaired driving. 6. A DA Form 268 (Report to Suspend Favorable Personnel Actions [FLAG]) was initiated by the applicant s commander, effective 26 February 2014, by reason of involuntary separation initiated. 7. The applicant received a General Officer Memorandum of Reprimand (GOMOR) from the Commanding General (CG), Headquarters, Fort Bragg, NC, on 6 March 2014, for driving while impaired and speeding. The CG informed him the reprimand was an administrative action and not punishment under the Uniform Code of Military Justice. The CG further stated he was considering whether to direct the filing of the reprimand in the applicant s Army Military Human Resource Record (AMHRR). The applicant could submit matters for consideration which would be considered prior to the CG making his final filing decision. 8. The applicant acknowledged receipt of the GOMOR on 18 March 2014. In a written rebuttal, the applicant stated, in effect, he and his designated driver had a verbal altercation resulting in his designated driver leaving. The applicant was then told to leave the bar by a bouncer. In the parking lot, several bikers jumped him. One grabbed his phone; another punched him. He saw two of his friends come out of the bar. He grabbed them and walked to his car. One of the bikers yelled, "You better leave right now or something bad is going to happen to you and your friends." Understanding the dangerous situation, he got into the car and proceeded to drive home. Still shaken from the experience, he was pulled over, given a breathalyzer, and detained. He knows there were different options, but he felt their lives were in danger. He takes full responsibility for his actions. 9. The applicant s immediate and intermediate commanders recommended the GOMOR be permanently filed in his AMHRR based upon the applicant s previous driving while under the influence (DWI) citation, continued poor judgement, and participation in the Army Substance Abuse Program which had no impact. On 24 April 2014, the CG directed the GOMOR be permanently placed in the applicant s AMHRR. 10. The applicant's immediate commander notified the applicant on 17 June 2014, of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14- 12c, by reason of commission of a serious offense. The commander cited the applicant s impaired operation of a motor vehicle as the specific reason for the action. The applicant acknowledged receipt of this notification on the same date. 11. On 24 June 2014, the applicant consulted with counsel and was advised of the basis for the contemplated actions to separate him and its effects; of the rights available to him; and the effect of any action taken by him to waive his rights. He elected to submit a statement in his own behalf. However, there is no additional statement available for review in the service record. 12. The applicant's immediate commander formally recommended his separation under the provisions of Army Regulation 635-200, Chapter 14, by reason of commission of a serious offense. The intermediate commander reviewed and concurred with the recommendation, further recommending the issuance of an under honorable conditions (general) characterization of service. 13. The separation authority approved the recommended action and waived the requirement for rehabilitative transfer on 14 July 2014. He further directed an under honorable conditions (general) characterization of service. 14. The applicant was discharged on 22 August 2014 under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct (serious offense). His character of service was under honorable conditions (general). He was credited with 4?years, 9 months, and 19 days of net active service this period. His DD Form 214 also shows he was authorized or awarded the following: * Army Commendation Medal * Army Achievement Medal (3rd award) * Army Good Conduct Medal * National Defense Service Medal * Global War on Terrorism Service Medal * Iraq Campaign Medal with campaign star * Noncommissioned Officer Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon (2nd award) * Kosovo Campaign Medal with bronze service star * North Atlantic Treaty Organization Medal 15. On 11 April 2023, the applicant was asked to provide medical documentation to support his PTSD claim. However, he did not respond. The available service record does not contain, nor does he provide any documentation in support of this claim. 16. Regulatory guidance provides when an individual is discharged under the provisions of Army Regulation 635-200, Chapter 14, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. Characterization of service as honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate. 17. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. 18. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under honorable conditions, general, discharge to honorable. 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 4 November 2009; 2) Military Police Report (MPR) Number 00840-2014-MPC023, shows the applicant was apprehended by a Cumberland County, NC, deputy on 17 February 2014 for speeding and impaired driving; 3) A DA Form 268 (Report to Suspend Favorable Personnel Actions [FLAG]) was initiated by the applicant s commander, effective 26 February 2014, by reason of involuntary separation initiated; 4) The applicant received a General Officer Memorandum of Reprimand (GOMOR) from the Commanding General (CG), Headquarters, Fort Bragg, NC, on 6 March 2014, for driving while impaired and speeding; 5). The applicant's immediate commander notified the applicant on 17 June 2014, of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14- 12c, by reason of commission of a serious offense; 6). The applicant was discharged on 22 August 2014 under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct (serious offense). c. The military electronic medical record (AHLTA), VA electronic medical record (JLV), ROP, and casefiles were reviewed. A review of AHLTA showed the applicant was command referred to ASAP on 13 July 2010 after receiving a DWI. The applicant denied a significant history of alcohol use but acknowledged having drank 3 Long Island Ice Teas on the night of DUI. He was noted to have no other alcohol related incidents. He was diagnosed with Alcohol Intoxication and scheduled to attend ADAPT. The applicant next BH-related encounter occurred on 21 February 2014, whereby the applicant was again referred to ASAP, secondary to DUI and diagnosed with Alcohol Disorder. ASAP encounters were sparse on detail but showed the applicant engaged in outpatient ASAP treatment from 21 February 2014 to 22 May 2014. On 8 May 2014 the applicant underwent a Mental Status Evaluation in preparation for Chapter 14 separation and was psychiatrically cleared for administrative separation. No other military BH records were provided for review. d. A review of JLV showed the applicant 10 percent SC for Asthma. He does not have a BH SC disability. The applicant s first BH encounter with the VA appears to have occurred at the Washington, DC VA, on 11 September 2017. The applicant reported feeling depressed, hopeless, irritable, and angry, following his experience in the Army and hardship upon his discharge. The applicant reported a history of combat deployment and traumatic experiences related to witnessing his friends die. When asked by the provider, the applicant denied having responded with fear, helplessness, or horror to any of the traumatic experiences but reported that he, instead, responded with anger. The applicant also reported receiving 2 DUI charges during service, which resulted in his administrative discharge. The applicant reported that once discharged he was hopeless and homeless for two years. Though now employed and sheltered, he reported continued feelings of depression and anxiety. The applicant was diagnosed with Unspecified Depression, and a noted history deployment. He was referred for outpatient care. Records were void of any BH treatment visit for the applicant following the 11 September 2017 encounter through 5 March 2023. Encounter note dated 6 March 2023 showed the applicant underwent an initial evaluation related to a request for substance treatment. He was diagnosed with Cannabis Dependence uncomplicated. Encounter noted date 7 March showed the applicant also diagnosed with Alcohol Abuse. During the encounter the applicant denied a history of trauma, on a standard questionnaire. The applicant was enrolled into the Substance Abuse Rehabilitation Program (SARP) and has remained in the program through 27 July 2023. JLV was void of a diagnosis of PTSD. No civilian BH records were provided for review. e. The applicant is requesting upgrade of his under honorable conditions, general, discharge to honorable. He contends his misconduct was related to PTSD. A review of the records showed the applicant diagnosed with Alcohol Intoxication, and Alcohol Abuse during service, and Alcohol Abuse, and Cannabis Dependence post-service. Records were void of documentation supporting a PTSD diagnosis. In absence of documentation supporting his assertion of PTSD, there is insufficient evidence his misconduct was related to or mitigated by PTSD, and insufficient evidence to support an upgrade of his current discharge characterization. f. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence that the applicant had an experience or condition during his time in service that mitigated his misconduct. However, he contends his misconduct was associated with PTSD, and per Liberal Consideration guidance his contention is sufficient to warrant the Board s consideration. 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 contends his misconduct was related to 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? No. A review of the records showed the applicant diagnosed with Alcohol Intoxication, and Alcohol Abuse during service, and Alcohol Abuse, and Cannabis Dependence post- service. Records were void of documentation supporting a PTSD diagnosis. In absence of documentation supporting his assertion of PTSD, there is insufficient evidence his misconduct was related to or mitigated by PTSD, and insufficient evidence to support an upgrade of his current discharge characterization. BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. 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 request, supporting documents, evidence in the records, and published DoD guidance for consideration of discharge upgrade requests. The applicant states that he has combat related post-traumatic stress disorder. However, the Board found insufficient evidence supporting a diagnosis of PTSD and the applicant provided none on his own behalf. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :xx :xx :xx DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined 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. ADMINISTRATIVE NOTE(S): A review of the applicant's record shows his DD Form 214, for the period ending 22 August 2014 is missing an important entry that may affect his eligibility for post- service benefits. As a result, amend the DD Form 214 by adding the following entry in item 18 (Remarks), CONTINUOUS HONORABLE SERVICE FROM 20091104 UNTIL 20121011. 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. Section 1556 of Title 10, U.S. 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. 3. Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-11 states applicants do not have the right to a hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. 4. Army Regulation 635-200 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. 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 (UOTHC) was normally considered appropriate. However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record. 5. Army Regulation 635-5 (Personnel Separations), 15 August 1979, in effect at the time did not provide for an additional entry for continuous honorable active service, when a Soldier who previously reenlisted without being issued a DD Form 214 was discharged with any characterization of service except honorable. However, an interim change, published on 2 October 1989 does provide for such an entry. 6. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to Discharge Review Boards (DRB) and Boards for Correction of Military/Naval Records (BCM/NR) 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. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. 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. 7. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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. 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) AR20230000405 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1