IN THE CASE OF: BOARD DATE: 22 August 2023 DOCKET NUMBER: AR20230001064 APPLICANT REQUESTS: • reconsideration of his previous request for an upgrade of his under honorable conditions (general) discharge. • As a new argument, he requests a different reason for discharge, restoration of his rank/grade, and payment of any resulting back pay and allowances. • Additionally, he requests an 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) 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 AR20170016760 on 15 October 2019. 2. The applicant states, in effect: a. On 6 October 2022, President Joe Biden pardoned citizens convicted of simple marijuana possession. President Biden said, “Too many lives have been upended because of our failed approach to marijuana. It’s time we right these wrongs.” Instead of being discharged, the applicant should have received treatment. He later learned he was self-medicating due to post-traumatic stress disorder (PTSD). He and his children have suffered in civilian life. Because of his discharge, they have been denied benefits, employment, and housing. b. He notes PTSD, traumatic brain injury (TBI), and other mental health issues as mitigating factors related to his request. 3. The applicant enlisted in the Regular Army on 2 August 1990 for a 4-year period. The highest rank he attained was private first class/E-3. 4. The applicant served a period of foreign service in Saudi Arabia in May 1991. 5. On 24 November 1991, the applicant’s battalion commander informed the applicant that he was considering whether he should be punished under Article 15 of the Uniform Code of Military Justice on 27 November 1991, for wrongful possession of 3.2 ounces, more or less of marijuana and the wrongful use of marijuana, on or about 24 October 1991. a. The applicant consulted with counsel. He declined trial by a court-martial and opted for a closed Article 15 hearing. He also did not request someone to speak on his behalf and elected not to present any matters in his defense. b. The imposing officer found him guilty of violating Article 112a of the UCMJ and punished him reduction to private/E-1, forfeiture of $376.00 pay per month for two months, 45 days of extra duty, and 45 days restriction. c. The applicant appealed his punishment to the next higher commander. A Judge Advocate General officer reviewed the appeal and opined that the Article 15 proceedings were conducted in accordance with law and regulations and that the punishments imposed were not unjust or disproportionate to the offenses committed. The brigade commander reviewed the appeal and denied it on 17 December1991. 6. The applicant's immediate commander notified the applicant on 3 April 1992 of his intent to initiate separation action against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), Chapter 14-12c, by reason of misconduct. As the specific reason, the commander cited the applicant's wrongful use of a controlled substance. 7. On that same date, the applicant consulted with counsel and was advised of the basis for the contemplated action 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, the statement is not available for review in the applicant’s service record. 8. The applicant's immediate commander formally recommended his separation prior to the expiration of his term of service under the provisions of AR 635-200, Chapter 14-12c, by reason of misconduct. The commander further stated the applicant was unwilling to make a rehabilitative attempt. 9. The intermediate commander recommended approval of the proposed separation action on 13 April 1992 and further recommended an under honorable conditions (general) service characterization. 10. The separation authority approved the recommended separation action on 22 April 1992 and directed an under honorable conditions (general) service characterization. 11. The applicant’s DD Form 214 shows he was discharged on 5 May 1992, in the grade of E-1 in accordance with chapter 14-12c of AR 635-200 with a general, under honorable conditions discharge. He was credited with 1 year, 9 months, and 4 days of net active service with 4 months and 9 days of foreign service. His awards include, but are not limited to, the Southwest Asia Service Medal with three bronze service stars, and the Kuwait Liberation Medal. His DD Form 214 also contains the following entries: • Item 24 (Character of Service) - Under Honorable Conditions • item 25 (Separation Authority) - AR [Army Regulation] 635-200, PARA 14-12c • item 26 (Separation Code) - JKK • item 28 (Narrative Reason) - Misconduct - Abuse of Illegal Drugs 12. The ABCMR reviewed the applicant’s request for an upgrade of his characterization of service on 15 October 2019. After careful consideration, the Board found insufficient evidence of in-service mitigation for his misconduct. The applicant’s character of service was not in error or unjust. The Board denied his request. 13. The applicant’s record does not contain, nor does he provide documentation to support his contentions of PTSD, TBI, or other mental health issues. 14. 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. An honorable characterization of service is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate. 15. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. 16. MEDICAL REVIEW: a. The applicant is requesting reconsideration of his previous request to upgrade his under honorable conditions, general, discharge to honorable. He contends his misconduct was related PTSD, TBI, and 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 2 August 1990. He served a period of foreign service in Saudi Arabia in May 1991; 2) He accepted NJP under provision of Article 15 of the UCMJ on 27 November 1991, for wrongful possession of 3.2 ounces, more or less, of marijuana and the wrongful use of marijuana, on or about 24 October 1991; 3) 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 misconduct; 4) The separation authority approved the recommended separation action on 22 April 1992 and directed an under honorable conditions (general) service characterization; 5) The applicant was discharged on 5 May 1992, under the provisions of Army Regulation 635-200, Chapter 14-12c, by reason of misconduct. c. The VA electronic medical record (JLV), ROP, and casefiles were reviewed. The military electronic medical record (AHLTA) was not reviewed as it was not in use during the applicant’s time in service. No military BH-related records were provided for review. A review of JLV showed the applicant 100 percent SC overall and 50 SC for PTSD. C&P Examination, dated 4 October 2022, showed the applicant was diagnosed with PTSD associated with combat exposure during the Gulf War in 1991. The applicant reported fearing for his life as a tank member breaching a minefield, repeated exposure to dead and/or dismembered bodies, and being under constant threat of a chemical attack. The examiner deemed the applicant endorsed sufficient symptoms to meet diagnostic criteria for PTSD and opined that symptoms outlined in the applicant’s previous diagnosis of Unspecified Depressive Disorder (C&P Examination dated 30 July 2019) were better explained by the diagnosis of PTSD. JLV contained only two BH treatment encounters for the applicant 6 March 2023 and 16 August 2023). On 6 March 2023 he complained of depression, anxiety, anger, decreased motivation, and isolation. He reported a long history of the symptoms, that he could now have addressed as his PTSD SC was approved. It was noted that applicant reported having previously self-medicated with marijuana to address symptoms, but the use of marijuan was now problematic as he was a commercial vehicle driver. He was diagnosed with PTSD and referred for outpatient treatment. Encounter dated 16 August 2023 showed the applicant reported symptoms consistent with what was reported in the previous session. His diagnosis of PTSD was confirmed, and he was scheduled for follow-up with an expectation of 3 – 6 months of individual therapy. d. The applicant is seeking reconsideration of his previous request to upgrade his under honorable conditions, general, discharge to honorable. He contends his misconduct was related to PTSD, TBI, and Other Mental Health Issues. A review of the records was void of any BH diagnosis or treatment history for the applicant during service. Post-service records showed him 50 SC for PTSD. He was also diagnosed with Unspecified Depressive Disorder in 2019, but during his 2022 C&P Examination it was determined the symptoms were better explained by PTSD. Records were void of a diagnosis of TBI. The applicant’s misconduct outlined in the separation documentation consisted of wrongful use of marijuana. As there is a well-established relationship between PTSD and comorbid substance abuse, there is a nexus between the applicant’s misconduct characterized and wrongful use of marijuana, such that his misconduct was mitigated by the disorder. Additional misconduct outlined in the ROP consisted of possession of marijuana. Given the quantity of the marijuana found in the applicant’s possession (3.2 oz), it is unclear to this advisor if the marijuana was intended solely for personal use. However, in absence of evidence supporting the marijuana was for anything other than personal use, this advisor will lean in favor of the applicant and accept that the marijuana was for personal use. Thus, his misconduct characterized by possession of marijuana was also mitigated by PTSD, as the possession was related to use, and use was mitigated by the disorder. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence that the applicant had an experience or condition 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. He is 50 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 for the applicant during service. Post-service records showed him 50 SC for PTSD. He was also diagnosed with Unspecified Depressive Disorder in 2019, but during his 2022 C&P Examination it was determined the symptoms were better explained by PTSD. Records were void of a diagnosis of TBI. The applicant’s misconduct outlined in the separation documentation consisted of wrongful use of marijuana. As there is a well-established relationship between PTSD and comorbid substance abuse, there is a nexus between the applicant’s misconduct characterized and wrongful use of marijuana, such that his misconduct was mitigated by the disorder. Additional misconduct outlined in the ROP consisted of possession of marijuana. Given the quantity of the marijuana found in the applicant’s possession (3.2 oz), it is unclear to this advisor if the marijuana was intended solely for personal use. However, in absence of evidence supporting the marijuana was for anything other than personal use, this advisor will lean in favor of the applicant and accept that the marijuana was for personal use. Thus, his misconduct characterized by possession of marijuana was also mitigated by PTSD, as the possession was related to use, and use was mitigated by the disorder. BOARD DISCUSSION: 1. The Board determined 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 and all supporting documents, the Board found that relief was partially warranted. The Board also 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. a. The applicant was discharge due to misconduct (commission of a serious offense) and received a general discharge. Despite his serious offense and despite his failure to complete his enlistment commitment, the Board was persuaded by 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 an honorable discharge is appropriate under published DoD guidance for liberal consideration of discharge upgrade requests. b. The applicant’s narrative reason for separation was assigned based on his discharge under the provisions of chapter 14 of AR 635-200 due to misconduct, commission of a serious offense (wrongful possession and use of illegal drugs). Absent his serious misconduct, there was no fundamental reason to process him for discharge. The underlying reason for his discharge was his misconduct. The only valid narrative reason for separation permitted under that paragraph is "misconduct" and the appropriate Separation Code associated with this discharge is "JKK" which are correctly shown on his DD Form 214. c. The evidence of record shows the applicant wrongfully possessed and used illegal drugs. As a result, his commander imposed NJP against him and the resultant punishment included a reduction to private/E-1. The Board does not normally reexamine issues of guilt or innocence under Article 15 of the UCMJ. This is the imposing commander’s function, and it normally will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence. The applicant was provided a defense attorney, was given the right to demand trial by court-martial, and was afforded the opportunity to appeal the Article 15. The applicant appealed the Article 15 to the next higher commander and his appeal was partially granted. The appellate authority did not set aside or remove the Article 15. The Board found no evidence the Article 15 was untrue or unjust. There is no evidence the applicant was promoted above the grade of private/E-1 between the date he was reduced and the date he was separated. As such, his DD Form 214 correctly listed this grade. The Board found no error or injustice in his grade. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF xx: xx: xx: GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. As for the issue being reconsidered (discharge upgrade), the Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20170016760 on 15 October 2019. 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 5 May 1992 showing his character of service as Honorable. • Separation Authority: No Change • Separation Code: No Change • Reentry Code: No Change • Narrative Reason for Separation: No Change 2. As for the new issue (different reason for discharge, restoration of his rank/grade, and payment of any resulting back pay and allowances), 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. 8/22/2023 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. 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. 2. Army Regulation 15-185 (ABCMR) sets forth procedures for processing requests for the correction of military records. a. Paragraph 2-15a governs requests for reconsideration. This provision of the regulation allows an applicant to request reconsideration of an earlier decision of the ABCMR. The applicant must provide new relevant evidence or argument that was not considered at the time of the ABCMR's prior consideration. b. Applicant’s do not have the right to a hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides 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 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 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline). Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter; however, the separation authority may direct a general discharge if merited by the Soldier’s overall record. 4. Army Regulation 635-5-1 (SPD) provides the specific authorities (regulatory or directive), narrative reasons for separating Soldiers from active duty, and the separation codes to be entered on the DD Form 214. It states that “Misconduct” is the appropriate narrative reason and “JKK” is the appropriate separation code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 14, Paragraph 14-12c. 5. 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 post-traumatic stress disorder; 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. 6. 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//