DEPARTMENT OF THE ARMY ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 251 18TH STREET SOUTH, SUITE 385 ARLINGTON, VA 22202-3531 SAMR-RBA 27 September 2023 MEMORANDUM FOR Case Management Division, Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for , AR20230000457 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings in which the Board recommended denying the applicant’s request. 2. I have reviewed the evidence presented, findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant relief. Therefore, in addition to the relief already granted by the board, under the authority of Title 10, United States Code, section 1552, I direct that the Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing: * Characterization of Service: Honorable * Separation Authority: No change * Separation Code: No change * Reentry Code: No change * Narrative Reason for Separation: No change 3. Request that the corrections be completed not later than 31 March 2024. Further request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of this decision and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: 09/27/2023 Encl CF: ( ) OMPF Printed on Recycled Paper ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 Auguste 2023 DOCKET NUMBER: AR20230000457 APPLICANT REQUESTS: an upgrade of his under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 29 August 2007 * letter, Department of Veterans Affairs (VA), Readjustment Counseling Service, dated 24 March 2022 * VA Form 21-0781 (Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder [PTSD]), dated 23 June 2022 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 to move on from this point in his life. The applicant notes PTSD as a mitigating factor in the circumstances leading to his discharge. 3. The applicant enlisted in the Regular Army on 24 August 2004. The highest rank he attained was specialist/E-4. He was awarded military occupational specialty (MOS) 19D (Cavalry Scout). 4. He underwent a behavioral health evaluation on 28 March 2007 in preparation for administrative separation. The evaluating provider determined the applicant was psychiatrically cleared for any administrative action deemed appropriate by his command. 5. He was formally counseled 29 March 2007 for the following reasons: * substandard performance * diagnostic Army Physical Fitness Test (APFT) failure * tiredness; solutions for sleeplessness * setting an example for new Soldiers 6. A Memorandum of Agreement, dated 13 April 2007, shows the applicant was briefed on the Army Substance Abuse Program (ASAP) Preliminary Recommendation for Prevention Education or Outpatient Treatment in the ASAP Clinical Program. He acknowledged agreement and/or understanding of the following: * requirement to abstain from all mood-altering chemicals and high risk environments * the 5-day intensive outpatient program and 2-day ADAPT course * pre-treatment group therapy * documented sober support attendance * required alcohol and other drug testing 7. He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 18 April 2007, for wrongfully using marijuana on or about 6 February 2007. His punishment consisted of reduction to private/E-2, forfeiture of $729.00 pay per month for two months, and 45 days of extra duty and restriction. 8. A DD Form 2807-1 (Report of Medical History), dated 30 April 2007, and the corresponding DD Form 2808 (Report of Medical Examination) show the applicant reported decreased hearing, shoulder pain, knee pain, frequent trouble sleeping and use of illegal drugs. However, he noted he was currently in good health. He was found medically qualified for separation. 9. He was formally counseled on 18 June 2007 for failing a second urinalysis which was conducted on 2 June 2007. 10. A memorandum to the applicant’s commander from the ASAP Clinical Director, dated 25 June 2007, informed the commander that the applicant was deemed an ASAP rehabilitation failure. The director noted the applicant was given a provisional diagnosis of cannabis abuse and failed a second urinalysis since his initial ASAP referral. Additionally, the applicant did not attend the mandated support groups. 11. The applicant's immediate commander notified the applicant on 11 July 2007, of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 14-12c, by reason of commission of a serious offense. As the specific reason, the commander cited the applicant’s two positive urinalyses for marijuana. The applicant acknowledged receipt of this notification on the same date. 12. On 25 July 2007, 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 not to submit a statement in his own behalf. 13. The applicant's immediate commander formally recommended his separation prior to the expiration of his term of service under the provisions of Army Regulation 635-200, Chapter 14-12c, by reason of commission of a serious offense. The intermediate commander reviewed and concurred with the recommendation, further recommending the issuance of a general discharge. 14. The separation authority approved the recommended action on 10 August 2007 and directed the issuance of a DD Form 257A (General Discharge Certificate). 15. The applicant was discharged on 29 August 2007 under the provisions of Army Regulation 635-200, paragraph 14-12c (2), by reason of misconduct (drug abuse). His character of service was under honorable conditions (general). He was credited with 3 years and 6 months of net active service with service in Iraq from 15 August 2005 to 29 November 2006. His DD Form 214 also shows he was authorized or awarded the following: * Army Commendation Medal * National Defense Service Medal * Global War on Terrorism Service Medal * Iraq Campaign Medal * Army Service Ribbon * Overseas Service Ribbon 16. The applicant provides: a. A letter from the VA Readjustment Counseling Service, dated 24 March 2022, which shows the applicant has been undergoing psychotherapy since December 2021 for ongoing severe and disabling symptoms of PTSD stemming from multiple military traumas which occurred during his service in Iraq. b. A VA Form 21-0871, dated 23 June 2022, shows the applicant reported that during his service in Iraq, he had been engaged by the enemy with small arms fire multiple times, sustained vehicle borne improvised explosive device (IED) attacks and stationery IED attacks multiple times. Additionally, his platoon was targeted by a suicide bomber which resulted in one casualty and multiple Purple Heart awards within the platoon. 17. 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. 18. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. 19. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under honorable conditions (general) discharge. He contends he had a mental health condition that mitigated his misconduct, 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 in the Regular Army on 24 August 2004; 2) The applicant served in Iraq from 15 August 2005-29 November 2006; 3) He accepted nonjudicial punishment (NJP) on 18 April 2007, for wrongfully using marijuana; 4) He was formally counseled on 18 June 2007 for failing a second urinalysis, which was conducted on 2 June 2007; 5) The applicant was discharged on 29 August 2007, Chapter 14-12c (2), by reason of misconduct (drug abuse). His character of service was under honorable conditions (general). c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and medical records. The VA’s Joint Legacy Viewer (JLV) and civilian medical documentation provided by the applicant were also reviewed. d. The applicant asserts he was experiencing PTSD as a result of his deployment to Iraq. The applicant was seen initially by behavioral health service on 20 March 2007 after returning from his extended combat deployment. The applicant reported symptoms of depression and insomnia, and he also reported using marijuana. He was diagnosed with adjustment disorder with depressed mood by a clinical psychologist, and he was recommended for follow-up individual therapy and substance abuse treatment at the Army Substance Abuse Program (ASAP), and he referred to medication management. The applicant began counseling at ASAP on 23 March 2007, and he was prescribed a sleep medication on 28 March 2007. Also on 28 March 2007, the applicant was seen for a Mental Status Exam in preparation for administrative separation. He was not diagnosed with a mental health condition, and he was psychiatrically cleared for administrative action, but he was recommended for continued follow-up behavioral health treatment. The applicant attended ASAP appointments regularly and also a few individual therapy appointments. On 27 June 2007, he was formally evaluated by ASAP, and he attended ASAP appointments till his discharge. e. The applicant was seen by the VA shortly after his discharge, and he was diagnosed and treated for insomnia, anger, depression, and anxiety. He was formally diagnosed with PTSD in 2012. The applicant receives service-connect disability for PTSD since 2022. The applicant also provided civilian medical documentation from a Licensed Clinical Social Worker, dated 24 March 2022, from a Vet Center in Montana. He was reported to be diagnosed with PTSD as a result from his combat deployment to Iraq, and he is actively engaged in treatment. f. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence to support the applicant had condition or experience that mitigated his misconduct. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant was reporting symptoms consistent with PTSD shortly after returning from his combat deployment, and he has been formally diagnosed with PTSD after his discharge. (2) Did the condition exist or experience occur during military service? Yes, the applicant reports his symptoms of PTSD began during his active service after his deployment to Iraq, and there is evidence the applicant reported behavioral health symptoms while on active service. In addition, he has been diagnosed with service- connected PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes, there is sufficient evidence that the applicant was deployed to an active combat environment during his active service. There is also evidence the applicant was reporting behavioral health symptoms, while on active service. He later was diagnosed and treated for service-connected PTSD by the VA system of care. The applicant’s substance abuse could have been an attempt to self-medicate or to avoid his negative emotional state. Avoidant behaviors are often a natural sequalae to PTSD. Therefore, it is recommended applicant’s discharge be upgraded to honorable, and the narrative reason for her separation be amended to Secretarial Authority. BOARD DISCUSSION: 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 Board considered the frequency and nature of the misconduct and the reason for separation. The Board noted that the applicant was afforded opportunity to attend the Alcohol and Substance Abuse Program and deemed a failure upon failure a urinalysis test a second time. The Board found insufficient evidence of in-service mitigating factors to overcome the misconduct and weigh in favor of a clemency determination. Based on a preponderance of evidence available for review, 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. CHAIRPERSON 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. 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 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. 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 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. 5. 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//