IN THE CASE OF: BOARD DATE: 5 October 2023 DOCKET NUMBER: AR20230001603 APPLICANT REQUESTS: an upgrade of his characterization of service. 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), 1 November 2007 * certificate of completion post-traumatic stress disorder (PTSD) residential treatment program, 5 October 2022 * buddy statement from Sergeant (SGT), 29 October 2022 * Department of Veterans Affairs (VA) 5-page rating decision packet, 31 October 2022 * VA service-connected disability compensation letter, 1 November 2022 * buddy statement from. , 9 November 2022 * 5 pages of VA My HealtheVet medical records, 15 November 2022 * VA certification letter of PTSD treatment program completion, 15 November 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 is requesting an upgrade to his characterization of service due to his PTSD from his deployment to Iraq, not receiving adequate help, and being discharged from the Army like he was a useless, unwanted person after giving his all to fight for his country. After returning from his deployment to Iraq, his chain of command let him down. He suffered from issues and self-referred to the Army Substance Abuse Program (ASAP). However, the ASAP program was unable to help him. He was deemed unfit for duty and received non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ). He has extreme PTSD and is seeking treatment in a VA facility. An upgrade to his characterization of service will help him with his constant anxiety. 3. The applicant enlisted in the Regular Army on 7 January 2004; he served in Iraq from 29 November 2005 to 17 November 2006. 4. Two DA Forms 4856 (Developmental Counseling Form), dated 6 June 2007, show the applicant was counseled on three separate occasions for failure to report to work on time or failure to report to work. He was also counselled by his command for suspicion of illegal drug use and notification of a command referred urinalysis. His records show he tested positive for THC and cocaine as a result of the command referred urinalysis conducted on 6 June 2007. 5. A DA Form 8003 (ASAP enrollment), dated 6 and 7 June 2007, shows his command referred him to the ASAP due to his absenteeism and improper use of drugs. It also shows the ASAP rehabilitation team met to review his command’s referral noting “The Soldier has a significant substance abuse problem and will be enrolled in outpatient treatment.” On 7 June 2007, the applicant’s command was officially notified of his enrollment in the ASAP for rehabilitation. 6. On 4 July 2007, he was counselled for failure to report for duty on 2 July 2007 and his admission of using crack cocaine. 7. On 5 July 2007, his duty status changed from present for duty to hospital. 8. On 17 July 2007, the applicant’s command was notified he tested positive for THC and cocaine for the second time, as a result of biochemical testing done on 16 July 2007 from a sample collected from him during a command urinalysis conducted on 3 July 2007. 9. On 2 August 2007, his duty status changed from hospital to present for duty. 10. On 6 August 2007, the applicant accepted NJP under Article 15, UCMJ, for the following charges and specifications: a. Charge I, Article 86 (Absence without Leave) – (1) Specification 1 – On or about 5 June 2007, the applicant failed to go at the time prescribed to his appointed place of duty. (2) Specification 2 – On or about 6 June 2007, the applicant failed to go at the time prescribed to his appointed place of duty. (3) Specification 3 – On or about 2 July 2007, the applicant failed to go at the time prescribed to his appointed place of duty. b. Charge II, Article 112a (Wrongful Use, Possession of Controlled Substances) – (1) Specification 1 – On or between 2 June 2007 and 3 July 2007, wrongfully use cocaine, a scheduled II controlled substance. (2) Specification 2 – On or between 2 June 2007 and 3 July 2007, wrongfully use marijuana, a scheduled I controlled substance. c. His punishment was reduction to private first class (PFC/E-3); forfeiture of $403.00 pay per month for one month, and extra duty for 14 days. 11. On 17 September 2007: a. The applicant’s command was notified he tested positive for cocaine for the third time as a result of biochemical testing done on 14 September 2007 from a sample collected from him during a command urinalysis conducted on 6 September 2007. b. He was counselled for his positive urinalysis results for Cocaine, consequences and expected performance. 12. On 19 September 2007: a. He accepted NJP under Article 15, UCMJ, for on or between 6 August 2007 and 7 September 2007, wrongfully use cocaine, a scheduled II controlled substance. His punishment was reduction to private (PV2/E-2); forfeiture of $729.00 pay per month for two months, suspended for 2 months, automatically remitted if not vacated on or before 19 November 2007; and extra duty for 45 days. b. The applicant's commander notified him of his intent to initiate actions to separate him from service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Active Duty Enlisted Administrative Separations), paragraph 14-12b, pattern of misconduct and recommended the issuance of a general discharge. The commander noted the reason(s) for his action was the applicant’s: * 2 June 2007, positive urinalysis for cocaine and marijuana * 5 June 2007, failure to be at appointed place of duty * 6 June 2007, failure to be at appointed place of duty * 2 July 2007, failure to be at appointed place of duty * 2 August 2007, Commanding General NJP under Article 15, UCMJ * 17 September 2007, positive urinalysis for cocaine * 19 September 2007, field grade NJP under Article 15, UCMJ c. He acknowledged receipt of his commander’s notification of separation. 13. On 20 September 2007, the applicant underwent a complete mental status evaluation as part of his consideration for discharge due to his misconduct. His evaluation noted, he was mentally responsible, able to distinguish right from wrong and was psychologically cleared for any administrative actions deemed appropriate by his command. 14. On 2 October 2007, he completed his medical examination as part of his consideration for discharge due to his misconduct. His DD Form 2808 (Report of Medical Examination) shows: a. Block 74a (Examinee/Applicant), is not qualified for service. b. Block 77 (Summary of Defects and Diagnoses) shows the following: * drug abuse * PTSD * depression 15. On 3 October 2007, his immediate commander formally recommended his separation from the service, under the provisions of AR 635-200, paragraph 14-12b, pattern of misconduct. He noted, in consultation with the rehabilitative team, it was determined that further rehabilitative efforts were not practical, rendering the applicant’s rehabilitative or corrective training a failure. The Soldier/applicant clearly has no potential for useful service under conditions of full mobilization or daily garrison duties. He also noted the applicant was an ASAP rehabilitation failure due to his second positive urinalysis dated 17 September 2007. 16. On 11 October 2007, he was advised by his consulting counsel of the basis for the contemplated action to separate him for a pattern of misconduct under AR 635-200, Chapter 14, paragraph 14-12b 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 because he had less than six years of total active and reserve military service at the time of his initiation of separation and because he was not notified that he was subject to a characterization of service under other than honorable conditions, he was not entitled to have his case heard by an administrative separation board. (1) He understood he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that he may be ineligible for some benefits as a veteran under both Federal and State laws. (2) He understood that if he received a discharge/character of service that was less than honorable, he may make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however, he realized that an act of consideration by either board does not imply that his discharge would be upgraded. (3) He elected not to submit a statement on his own behalf. 17. On 15 October 2007, after conducting a review the office of the Judge Advocate General found the applicant’s discharge packet to be legally sufficient to support separation and that the applicant’s infractions detailed in the packet constituted a pattern of misconduct and supported a general discharge. They noted the applicant was adequately counseled and given a reasonable opportunity to improve. He was also informed of his rights and given an opportunity to consult with counsel. 18. On 17 October 2007, the separation authority approved the chain of command's recommendation for the applicant's discharge under the provisions of AR 635-200, chapter 14, paragraph 14-12b, and directed the applicant be issued a General Discharge Certificate. 19. On 1 November 2007, the applicant was discharged under the provisions of AR 635-200, paragraph 14-12c, by reason of misconduct-drug abuse, with a separation code of "JKK" and a reentry code of "4." He completed 2 year, 8 months, and 23 days of net active service with 11 months and 19 days of foreign service during the covered period. His DD Form 214 contains the following information and/or entries: a. Block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized): * Army Commendation Medal * Army Achievement Medal * Army Good Conduct Medal * National Defense Service Medal * Iraq Campaign Medal * Army Service Ribbon * Overseas Service Ribbon b. Block 18 (Remarks) the entry “SERVICE IN IRAQ 20051129 – 20061117” 20. There is no indication the applicant petitioned to the Army Discharge Review Board for an upgrade of his discharge within that Boards 15-year Statute of limitations. 21. The applicant provides: a. A VA certification letter and certificate of completion showing he successfully completed a PTSD treatment program at the Central Arkansas Veterans Healthcare System. b. A buddy statement from SGT who states in preparation for deployment to Iraq, the applicant demonstrated the highest level of passion for his country and his duty. He extended his knowledge of combat readiness and trauma medical treatment. During deployment in Iraq, convoys often came under enemy attack from IEDs and other attacks. Despite this, the applicant insisted on being assigned convoy duties and routes to support his fellow Soldiers. No matter where he was appointed, he excelled and made us all glad to be around him. Upon our return from deployment, he kept in touch with me and other Soldiers. Once a year, he and the other Soldiers visit the families of fallen Soldiers to honor and celebrate their lives. He truly lives the Army values and deserves full commendation and honor that can be bestowed upon him. I ask the board to grant him with favor and valor what the applicant requests. c. A VA disability decision rating and a VA service-connected disability compensation letter showing his PTSD disability rating was increased from 50 percent to 100 percent effective 22 August 2022. d. A buddy statement from states he met the applicant in Fort Hood in 2005. They were both medics assigned to the same platoon during their deployment to Iraq. While deployed, they treated wounded Soldiers and Iraqis. They went through pure hell, but the applicant was always a great medic, Soldier, and friend who always led by example and managed to keep it all together. We saw a lot of each other and became close friends until he volunteered to be on the MIT team and would go all over Iraq, teaching the Iraqis how to defend themselves. He believes the applicant deserves the status of an honorable discharge because he has continued to seek help for the trauma he endured while deployed. At the same time, he maintains gainful employment and puts the needs of his family and friends before his own. e. 5 pages of VA My HealtheVet medical records showing that from 10 February 2014 to 26 September 2022, he seen by various VA providers for the following health problems/issues: * Anxiety * Chronic PTSD * Adjustment disorder with mixed emotional features 22. Regulatory guidance provides that a discharge under other than honorable conditions was normally considered appropriate for Soldier's discharged under the provisions of AR 635-200, chapter 14. However, the separation authority could direct a general discharge if such were merited by the Soldier's overall record. 23. The applicant provided argument and/or evidence the Board should consider, along with the applicant's overall record, in accordance with the published equity, injustice, or clemency determination guidance. 24. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his characterization of service. The applicant contends that PTSD is a mitigating factor in his discharge. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory: * Applicant enlisted in the RA on 7 January 2004. * The applicant was deployed to Iraq 29 November 2005 – 1 November 2006 * He was command referred and enrolled in ASAP on 7 June 2007. * On 6 August 2007, the applicant accepted NJP under Article 15, UCMJ, for the following charges and specifications: Charge I, Article 86 (Absence without Leave) –Specification 1 – On or about 5 June 2007, the applicant failed to go at the time prescribed to his appointed place of duty. Specification 2 – On or about 6 June 2007, the applicant failed to go at the time prescribed to his appointed place of duty. Specification 3 – On or about 2 July 2007, the applicant failed to go at the time prescribed to his appointed place of duty. Charge II, Article 112a (Wrongful Use, Possession of Controlled Substances) – Specification 1 – On or between 2 June 2007 and 3 July 2007, wrongfully use cocaine, a scheduled II controlled substance. Specification 2 – On or between 2 June 2007 and 3 July 2007, wrongfully use Marijuana, a scheduled I controlled substance. * He accepted NJP under Article 15, UCMJ, for on or between 6 August 2007 and 7 September 2007, wrongfully use Cocaine, a scheduled II controlled substance. * The applicant's commander notified him of his intent to initiate actions to separate him from service under AR 635-200, paragraph 14-12b, pattern of misconduct and recommended the issuance of a general discharge. The reasons are listed above. * The applicant was discharged on 1 November 2007 with a general, under honorable conditions characterization of service. c. Review of Available Records Including Medical: The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149, his ABCMR Record of Proceedings (ROP), certificate of completion, buddy statements (x2), VA rating decision, VA disability compensation letter, VA medical records from My HealtheVet, his DD Form 214, as well as documents from his service record and separation. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV). Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. The applicant asserts having PTSD as a result of his deployment to Iraq. He reports that once he returned home, he was suffering from PTSD which caused substance abuse problems. He reportedly came forward with his issues and self- referred to the Army Substance Abuse Program (ASAP). He states the program wasn’t able to help him, he was seen as unfit and given article 15s, and was “let down.” Overall, he reports not receiving adequate help. His service records do reflect that he was engaged in care through ASAP, however he was command directed to care. Records reflect he was actively engaged in treatment for several months. However, he was eventually discharged for his misconduct after numerous additional UAs and related issues. e. The applicant’s time in service predates consistent use of electronic health records (EHR) by the Army, however several health records were available for review and were consistent with what was provided in his supporting documents and service record. Per DA Form 8003 (ASAP enrollment), the applicant was command referred to ASAP on 6 June 2007 and enrolled by 7 June 2007. Per the ASAP team, it was noted that “The Soldier has a significant substance abuse problem and will be enrolled in outpatient treatment”. EHRs for ASAP contain minimal data but it is evident he was attending ASAP care regularly. The applicant presented to the ER on 4 July 2007, at the direction of his command, after he’d been AWOL and on a crack cocaine binge, had experienced suicidal ideation and had engaged in self-harm (superficial cutting on the inside of his arm). He was then seen again for a walk-in on 5 July 2007 where he also reported the suicidal thoughts, cutting his arm and leaving a suicide note for his wife. His service records reflect he was in the hospital 5 July to 2 August 2007. His included medical record suggests he was inpatient during this time and had been diagnosed with depression, with a historical diagnosis of PTSD. The applicant completed a mental status exam as part of his separation process on 20 September 2007. He was found to be mentally responsible, was able to distinguish right from wrong and adhere to the right, was not found to have any significant mental illness requiring disposition through medical channels, and was cleared to participate in administrative proceedings deemed necessary by command. He completed his separation medical examination on 2 October 2007, having completed his Report of Medical History on 17 September 2007. He indicated nervous trouble, that he’d been receiving counseling, that he’d experienced depression or excessive worry, that he’d been evaluated and treated for a mental condition, that he’d attempted suicide and that he’d used illegal drugs. When clarifying his self-reports, he indicated being diagnosed with anxiety and depression from the Army mental health clinic. The exam also shows that the doctor made note of PTSD, depression, bipolar disorder and sleep apnea. His record does reflect he was on a psychiatric profile. A Chronological Record of Medical Care was also included in his supporting documents. It shows he was also diagnosed with cannabis and cocaine dependence while in the service. f. The applicant has engaged in care through the VA since 2008, and with mental health care since 2013. The applicant is 100% service connected for PTSD (increased from 50% to 100% effective 22 August 2022). A C&P was available for review in his record from 2008, which does report trauma related symptoms and numerous significant traumatic incidents from his deployment. Because the applicant was a spouse, he also had additional encounters with military medicine prior to engaging at the VA. It appears he was seen for several sessions through the Army in 2009 and 2010. The applicant’s VA record shows he has been diagnosed with PTSD, anxiety adjustment disorder with mixed emotional features. The applicant provided a certificate of completion for PTSD Residential Rehabilitation Treatment Program (RRTP) from October 2022. Records indicate he’s also engaged in outpatient care to address PTSD. g. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is sufficient evidence to support the applicant had a potentially mitigating mental health condition during his time in service. And per Liberal Consideration guidance, his contention, and his medical history, are 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 asserts PTSD as a mitigating factor. (2) Did the condition exist or experience occur during military service? Yes, there is evidence the condition was present during his time in service and the applicant has since been 100% service connected for PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. There is sufficient evidence to support that the applicant was engaged in mental health care while in the service and was diagnosed with several mental health conditions to include PTSD. The applicant has since been 100% service connected for PTSD. Self- medication through substance use, going AWOL and failures to report are behaviors consistent with natural history and sequalae of PTSD, depression and anxiety. There is a nexus between PTSD and the misconduct that led to his discharge. Accordingly, an upgrade to honorable is recommended. 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 BH Advisor. 2. A majority of the Board found evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct being mitigated by PTSD. Based on a preponderance of evidence, a majority of the Board determined the applicant’s character of service should be changed to honorable. 3. The member in the minority found that, although the applicant’s misconduct is clearly mitigated by PTSD, his chain of command has already approved an under honorable conditions (general) character of service for a type of discharge that normally received an under other than honorable conditions character of service. The member in the minority determined the character of service the applicant received upon discharge is not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : :X 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 reissuing his DD Form 214 to show his character of service as honorable. 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 635-200, in effect at the time, set 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. (1) Soldiers are subject to separation under the provisions of this chapter under, paragraph 14-12b for a pattern of misconduct consisting of: (a) Discreditable involvement with civil or military authorities. (b) Discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army. (2) Soldiers are subject to separation under the provisions of this chapter under, paragraph 14-12 for a commission of a serious military or civil offense if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense. Paragraph 14-12c (2), states abuse of illegal drugs is serious misconduct. The separation reason in all separations authorized by this paragraph will be “misconduct-abuse of illegal drugs.” (3) A discharge under other than honorable conditions were normally considered appropriate. However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record. 3. 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, 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. 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. 4. Section 1556 of Title 10, United States 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230004703 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1