IN THE CASE OF: BOARD DATE: 18 October 2023 DOCKET NUMBER: AR20230001691 APPLICANT REQUESTS: Reconsideration of his previous request to upgrade his dishonorable discharge to honorable, due to medical reasons vice dishonorable discharge via court-martial, other. 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) 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 AR20180015413 on 31 October 2019. 2. The applicant states he was hospitalized at Wilford Hall Med Center, Ward 4D, for recurrent depressive episodes and post-traumatic stress disorder (PTSD) like symptoms. He was hospitalized from 17-19 May 2005. The diagnosis in the hospital was listed as major depressive disorder (MDD) recurrent and PTSD. In accordance with (IAW) Army Regulation (AR) 40-501 (Standards of Medical Fitness), paragraph 3-33(b), bipolar and depressive disorders, he was unfit for duty. He was later rated 100% disabled for PTSD (alone) and MDD recurrent. He was not properly evaluated for continued service, which was a disservice to the Army, the unit, and the Soldier. 3. The applicant enlisted in the Regular Army on 12 July 2000 and served honorably until he was discharged for immediate reenlistment. On 9 September 2002, he reenlisted for 3 years. He held military occupational specialty 42L (Administrative Specialist). 4. On 3 August 2005, he was reported in an absent without leave (AWOL) status from his unit at Fort Sam Houston, TX. On 3 September 2005, he was dropped from rolls (DFR) of the Army. 5. On 10 June 2006, civilian authority arrested him in,. He was held in the, and returned him to military control. He was transferred to the U.S. Army Personnel Control Facility, Fort Sill, OK. His duty status was changed from present for duty (PDY) to confined by military authorities effective 0900 hours, 17 August 2006. 6. General Court-Martial Order Number 7, dated 2 November 2006, shows the applicant was arraigned and tried before a general court-martial at Fort Sam Houston, TX. He pled guilty and was found guilty of the following Uniform Code of Military Justice (UCMJ) Articles: * Article 85 (Desertion) – AWOL, with intent to permanently remain away in desertion, from 3 August 2005 to 10 June 2006 (311 days) * Article 107 (False Official Statement) – making a false official statement to Special Agent on 14 July 2005 * Article 121 (Larceny – 4 specifications) – between May and June 2005, stealing currency from three Soldiers; more than $500 was stolen from two Soldiers and under $500 was stolen from the third Soldier; in addition, the charge included one specification of stealing an Enterprise Rental Car on 3 August 2005, a value of more than $500 * Article 123 (Forgery – 3 specifications) – In May 2005, forging three Soldiers’ signatures on official military finance forms: One DD Form 2558 (Authorization to Start, Stop, or Change an Allotment), two Standard Forms 1199A (Direct Deposit Sign-Up Form), and two DA Forms 3685 (JUMPS-JSS (Joint Uniform Military Pay System-Joint Service Software) Pay Elections 7. On 17 August 2006, the court sentenced the applicant to 42 months’ confinement, a forfeiture of all pay, and allowances, and a dishonorable discharge. He was transferred to military confinement on the same date. 8. On 2 November 2006, the general court-martial convening authority approved only so much of the sentence as allowed for 30 months in confinement, a forfeiture of all pay and allowances, and a dishonorable discharge. Except for the dishonorable discharge, the convening authority ordered the sentence's executed, after granting the applicant 69 days of confinement credit. 9. On 14 September 2007, the applicant was released from confinement and placed on parole, after serving 12 months and 29 days of his 30-month sentence. His duty status was changed from confined by military authorities to PDY. 10. On 23 January 2008, General Court-Martial Order Number 20 announced completion of the appellate review process, the applicant's sentence had been affirmed, and the dishonorable discharge was ordered executed. He was discharged accordingly on 27 March 2008. 11. The applicant’s DD Form 214 shows he was dishonorably discharged on 27 March 2008, under the provisions (UP) of AR 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, due to court-martial, other. He was credited with 5 years, 2 months, and 22 days of net active service this period with lost time from 3 August 2005 through 10 June 2006 and from 17 August 2006 through 27 March 2008. His DD Form 214 also shows: * Item 26 (Separation Code): JJD * Item 27 (Reentry Code): 4 * Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized): Army Achievement Medal (3rd Award), Army Good Conduct Medal (1st Award), National Defense Service Medal, Armed Forces Expeditionary Medal, Global War on Terrorism Service Medal, Army Service Ribbon, North Atlantic Treaty Organization Medal, and Driver and Mechanic Badge (Mechanic Component Bar). 12. In conjunction with the applicant’s previous ABCMR Case, on 25 September 2019, an Army Review Boards Agency (ARBA) psychologist provided the Board an advisory opinion, which stated in pertinent part: a. A review of the electronic VA medical record indicated the applicant had been diagnosed with PTSD, Osteoarthritis of knee, and low back pain. He had a service- connected disability rating of 100%. b. There was no documentation to support a diagnosis of schizophrenia. His diagnosis of PTSD was supported in the military electronic medical record and “JLV.” However, PTSD was not associated with the fraud he pled guilty to and was convicted. While AWOL may be associated with PTSD, it appears the applicant went AWOL to avoid prosecution for his crimes. c. IAW the 3 September 2014 Secretary of Defense Liberal Guidance Memorandum, the reviewed documents DO support the existence of a behavioral health condition at the time of discharge. The available records indicate the applicant DID meet medical retention standards IAW Army Regulation 40-501. PTSD IS NOT a mitigating factor in the misconduct that led to his conviction and discharge. d. A medical encounter on 17 May 2019, states he currently worked as a fireman and “has no problem doing his fireman duties.” 13. On 4 October 2019, the applicant was provided the advisory opinion and was given the opportunity to submit comments or rebuttal. In response to the advisory opinion the applicant stated in no way was he trying to avoid responsibility for his actions. He was simply pointing out the facts regarding the circumstances surrounding those actions. a. He was a very troubled young Soldier from 2003 to 2005. He turned to alcohol after a combat deployment in support of Operation Iraqi Freedom when he was going through a divorce. Instead of helping his coworkers and supervisors encouraged, enabled, and participated in his binge drinking, and reckless behavior. On 17 May 2005, he was hospitalized for 3 days, he was admitted due to suicidal and homicidal ideations. During that time, he was diagnosed with PTSD, major depression, and alcoholism; he also showed signs of schizophrenia. He was placed on Zoloft (an anti?depressant) and Seroquel (an anti?psychotic). He does not believe he received proper care, he was allowed to check himself out of the facility in just 3 days even though he had been admitted for stating he wanted to harm himself and others. He did not receive any other care, treatment, medication refills, or behavioral health follow-up appointments. He went AWOL on 3 August 2005, the second time. He was not sure why his records did not reflect this. b. He was never evaluated IAW AR 40?501 for retention after his hospitalization. This regulation states that a current or history of mood disorders including but not limited to major depression, depressive disorder (not otherwise specified) and unspecified psychosis do not meet the standard for retention. Due process should have mandated a proper evaluation be performed. At that time his conditions would have failed medical retention standards IAW AR 40?501 and would have warranted separation through medical channels. PTSD has many symptoms including but [not] limited to self?destructive and reckless behavior according to the Diagnostic and Statistical Manual of Mental Disorders. Binge drinking is a reckless behavior that led to his abuse of alcohol. It is his belief that his conditions are mitigating factors in his misconduct. He would like to address the medical encounter on 17 May 2009 where it was stated that he had no problem performing his “fireman” (Firefighter) duties. The City of Columbia Fire Department is an equal opportunity employer, his veteran status is protected as long as his job functions can be completed with reasonable accommodations. 14. The above advisory opinion and the applicant’s response were submitted to the Board in their entirety for review. 15. On 13 January 2020, the applicant was issued a DD Form 15 (Correction to DD Form 214) amending the DD Form 214, issued on 27 March 2008, to show in item: * 12f, Delete: “0000 00 00” * 12f, Add: “0000 08 00” * 18, Add: “Continuous Honorable Active Service From 20000712-20020908” * 18, Add: “Served in a Designated Imminent Danger Pay Area” * 18, Add: “Service in Kuwait/Iraq from 20021001-20030531” 16. 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. 17. 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. 18. 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. 19. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting reconsideration of his previous request to upgrade his dishonorable discharge to honorable. He contends he was experiencing mental health conditions including PTSD, which mitigated his misconduct. 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 12 July 2000; 2) On 2 November 2006, the applicant was arraigned and tried before a general court-martial. He pled and was found guilty of the following; A) being AWOL from 3 August 2005-10 June 2006 (311 days); B) making a false official statement on 14 July 2005; C) stealing more than $1500 from three Soldiers and stealing a rental car on 3 August 2005; and D) forging three Soldier’s signatures on official military finance forms; 3) On 17 August 2006, the court sentenced the applicant to 42 months’ confinement, a forfeiture of all pay, and allowances, and a dishonorable discharge. He was transferred to military confinement on the same date; 4) The applicant was discharged on 27 March 2008, Chapter 3, due to court-martial, other. His characterization of service was dishonorable; 5) On 31 October 2019, the ABCMR reviewed and denied the applicant’s request to upgrade his discharge. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and medical records. The Armed Forces Health Longitudinal Technology Application (AHLTA) and The VA’s Joint Legacy Viewer (JLV) were also examined. d. The applicant contends he was experiencing mental health conditions including PTSD as a result of his combat deployment to Iraq, which mitigates his misconduct. In addition, he felt he should have been discharged due to medical disability instead of court-martialed. There is insufficient evidence the applicant reported or was diagnosed with a mental health condition prior to being admitted into a military inpatient psychiatric ward in May 2005. Review of a discharge follow-up assessment completed by a licensed behavioral health provider, dated 20 May 2005, provided evidence the applicant was hospitalized at the local Air Force inpatient psychiatric program from 17- 19 May 2005. He had denied a history of mental health symptoms prior to his deployment to Iraq. However, during his deployment and afterwards, he reported symptoms of depression and PTSD. There was insufficient evidence the applicant was experiencing symptoms of schizophrenia, as he reported in his application. The applicant was also diagnosed with Major Depression Recurrent with PTSD at his discharge from the psychiatric ward. e. After his three-day inpatient psychiatric treatment, the applicant was not reporting suicidal or homicidal ideation. He described a plan for his future and had a support network. There was also a discussed plan for him to attend individual and group therapy and consider psychiatric medications. The applicant went AWOL a few months after this discharge from the inpatient facility, and there is insufficient evidence he attended any of the prescribed follow-appointments. Also, there was also insufficient evidence the applicant did not meet retention standards in accordance with AR 40-501 during his active service. Specifically, the applicant was not demonstrating significantly severe behavioral health symptoms and had not engaged in a sufficient level of treatment to be considered unable to fulfill his military duties due to a disability. Shortly after his short inpatient psychiatric treatment, the applicant engaged in larceny, forgery, and made a false statement. It appears more probable the applicant went AWOL to avoid the negative consequences of his actions than to avoid the negative emotions and reactions associated with his previous diagnosis of depression and PTSD. f. A review of JLV did provide evidence the applicant has been diagnosed with service-connected PTSD (100%) in 2014 related to his deployment in Iraq. g. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence to support the applicant had condition or experience 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, the applicant was diagnosed with depression and PTSD while on active service and by the VA. (2) Did the condition exist or experience occur during military service? Yes, the applicant was diagnosed with depression and PTSD while on active service and by the VA. (3) Does the condition or experience actually excuse or mitigate the discharge? No, there is sufficient evidence the applicant was diagnosed with depression and PTSD related to his deployment while on active service. However, there was insufficient evidence the applicant did not meet retention standards due to a psychiatric condition. The applicant did not report psychiatric symptoms of significant severity or had attended sufficient therapy to be considered for a medical discharge. In addition, there is no nexus between the applicant’s mental health conditions and the applicant’s misconduct of larceny, making a false statement, and forging official military documents: 1) these types of misconduct are not part of the natural history or sequelae of his reported mental health conditions and PTSD; 2) His reported mental health conditions and PTSD do not affect one’s ability to distinguish right from wrong and act in accordance with the right. The applicant did go AWOL as well, which can be associated with the applicant’s mental health conditions, including PTSD. However, the applicant went AWOL very shortly after engaging in the previously mentioned misconduct for over three hundred days. This behavior is more consistent with avoiding the negative consequences of his actions then negative emotions. BOARD DISCUSSION: 1. 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 record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. The Board noted the opine found insufficient evidence he attended any of the prescribed follow-appointments. Additionally, there was also insufficient evidence the applicant did not meet retention standards. Evidence in the record show the applicant was not demonstrating significantly severe behavioral health symptoms and had not engaged in a sufficient level of treatment to be considered unable to fulfill his military duties due to a disability. 2. The Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. It was noted by the Board, the applicant provided insufficient evidence of post-service achievements or character letters of support attesting to his honorable conduct that might have mitigated the discharge characterization. The Board determined the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge to an honorable discharge. Therefore, the Board denied relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board found 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 to amend the decision of the ABCMR set forth in Docket Number AR20180015413 on 31 October 2019. 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. AR 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. An honorable discharge was a separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-10 (Dishonorable Discharge). A Soldier was given a dishonorable discharge pursuant only to an approved sentence of a general court-martial. The appellate review had to have been completed and the affirmed sentence ordered duly executed. 3. Title 10, USC, Section 1201 provides for the physical disability retirement of a member who has either 20 years of service or a disability rating of 30% or greater. 4. Title 10, USC, Section 1203 provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%. 5. Title 38, USC, 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. a. 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. b. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform her duties. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 6. 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. 7. 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. 8. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 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 Discharge Review Boards (DRBs) and Board for Correction of Military/Naval Records (BCM/NRs) 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 (PTSD); Traumatic Brain Injury (TBI); 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 to those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 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 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. 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 based on 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. 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) AR20230001691 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1