IN THE CASE OF: BOARD DATE: 12 October 2023 DOCKET NUMBER: AR20230002202 APPLICANT REQUESTS: an upgrade of his under honorable conditions (general) characterization of service and an appearance before the Board via video or telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * letter, , Licensed Independent Social Worker (LISW), dated 17 January 2022 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code (USC), 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, in effect, he was unaware he was dealing with post-traumatic stress disorder (PTSD) at the time of his enlistment and discharge. As an enlisted Veteran and college graduate, he is requesting an upgrade. 3. The applicant enlisted in the Regular Army on 5 March 1986 for a 3-year period. The highest rank he attained was private first class/E-3. 4. The applicant was formally counseled on seven occasions between 4 December 1986 and 5 January 1987. Areas of emphasis covered in the counseling include, but are not limited to: * failure to repair on two occasions * sleeping during duty hours on three occasions * failure to stockade his bunk * forgetting TA-50 and alert gear while on alert * not wearing the proper uniform * failure to secure his wall locker * failure to follow instructions * lack of self-discipline 5. The applicant accepted non-judicial punishment under the provisions of Article 15, of the Uniform Code of Military Justice, on 8 January 1987, for dereliction in the performance of his duties by failing to secure his weapon on or about 4 January 1987. His punishment consisted of extra duty for seven days. 6. The applicant was formally counseled on eleven occasions between 13 January 1987 and 10 April 1987. Areas of emphasis covered in the counseling include, but are not limited to: * failure to inform first line leadership of lost meal card * looking in the compartment of an M880 (Truck) without authorization * failure to follow instructions * disobeying a lawful order on two occasions * lack of motivation * sleeping on guard duty/relieved of guard duty * violating the smoking policy * failure to secure his wall locker * missing brigade guard duty * failure to keep his barracks room to standard 7. The applicant accepted non-judicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on two occasions: a. On 24 April 1987, for failure to obey a lawful order, on or about 2 March 1987 and on or about 4 March 1987, and failure to go at the time prescribed to his appointed place of duty, on or about 2 March 1987. His punishment consisted of reduction to the grade of private/E-2, forfeiture of $172.00 pay, 14 days of extra duty, and 14 days of restriction. b. On 13 May 1987, for failure to go at the time prescribed to his appointed place of duty, on or about 25 April 1987, and for failure to obey a lawful order, on or about 25 April 1987 and on or about 29 April 1987. His punishment consisted of reduction to the grade of private/E-1, forfeiture of $153.00 pay and seven days of confinement in the Correctional Custody Facility (CCF). 8. A memorandum from Headquarters, Fliegerhorst Subcommunity, dated 9 June 1987, provided a final evaluation report of the applicant during his 7-day period of confinement in the CCF. The subcommunity commander stated, in effect, [the applicant] showed difficulty following verbal and written instructions and lacked motivation during daily routines. Seven days in the CCF was not adequate in terms of rehabilitation. [The applicant] would need further guidance and supervision to become a productive Soldier. 9. The applicant was formally counseled on seven occasions between 10 June and 6 August 1987. Areas of emphasis covered in the counseling include, but are not limited to: * failure to behave in a safe manner * disobeying a lawful order * lack of self-discipline * disrespect to a noncommissioned officer (NCO) on multiple occasions * failure to repair on multiple occasions * lack of motivation * consideration of separation for misconduct * failure to obey a regulation on two occasions 10. The applicant accepted non-judicial punishment under the provisions of Article 15, of the Uniform Code of Military Justice, on 26 August 1987, for failure to obey a lawful order, on or about 14 August 1987 and on or about 15 August 1987; and failure to go at the time prescribed to his appointed place of duty, on or about 15 August 1987. His punishment consisted of 14 days of extra duty and 14 days of restriction. 11. The applicant was formally counseled on 2 September 1987 and 21 September 1987 for lack of motivation, failure to repair, failure to follow instructions, and disrespect to an NCO. 12. The applicant's commander notified the applicant on 22 October 1987 of his intent to initiate administrative separation action under the provisions of Army Regulation 635- 200 (Personnel Separations - Enlisted Personnel), Chapter 13, by reason of unsatisfactory performance. The commander cited the applicant’s insufficient development and unsatisfactory performance as a Soldier as the specific reasons for the proposed action. The applicant's commander advised him of his rights and the applicant acknowledged receipt of the notification. 13. On the same date, the applicant acknowledged he was advised by consulting counsel of the basis for the contemplated action to separate him for unsatisfactory performance under Army Regulation 635-200, Chapter 13, and its effects; of the rights available to him; and the effect of any action he took in waiving his rights. a. He waived consideration of his case by an administrative separation board. He elected not to submit statements in his own behalf. b. He understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He further understood that, as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life. 14. The applicant's immediate commander formally recommended his separation under the provisions of Army Regulation 635-200, Chapter 13, on 26 October 1987. 15. On 26 October 1987, the applicant elected not to undergo a separation medical examination. 16. On 28 October 1987, the separation authority approved the recommended separation under the provisions of Army Regulation 635-200, Chapter 13, and directed an under honorable conditions (general) characterization of service. 17. The applicant was discharged on 17 November 1987, under the provisions of Army Regulation 635-200, Chapter 13, by reason of unsatisfactory performance. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms his service was characterized as under honorable conditions (general) with separation code JHJ and reenlistment code RE 3-3C. He was credited with 1 year, 8 months, and 13 days of net active service. 18. The applicant provides a letter from , LISW, dated 17 January 2022, wherein the author states, in effect, the applicant was undergoing treatment for chronic PTSD, and his records indicated a history of bipolar disorder. 19. Soldiers may be separated under the provision of Army Regulation 635-200, Chapter 13 when it is determined that they are unqualified for further military service because of unsatisfactory performance. 20. The Board should consider the applicant's argument and/or evidence in accordance with the published equity, injustice, or clemency determination guidance. 21. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under honorable conditions (general) discharge to honorable. He contends he was experiencing PTSD that 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 in the Regular Army on 5 March 1986; 2) The applicant was formally counseled and received non-judicial punishments on numerous occasions for various minor infractions related to his inability to maintain military standards and/or follow orders throughout his military career starting in December 1986; 3) The applicant was discharged on 17 November 1987, Chapter 13, by reason of unsatisfactory performance. His service was characterized as under honorable conditions (general). c. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The VA’s Joint Legacy Viewer (JLV) and additional hardcopy medical documentation provided by the applicant were also examined. d. On his application, the applicant noted PTSD was related to his request, as a contributing and mitigating factor in the circumstances that resulted in his misconduct. There is insufficient evidence the applicant reported or was diagnosed with a mental health condition while on active service. A review of JLV was void of medical documentation, and the applicant does not receive any service-connected disability. The applicant did provide civilian medical documentation, dated 17 January 2022, indicating he has been diagnosed with PTSD. There was insufficient evidence presented that the applicant was experiencing PTSD during his military service or as a result of his military experience. e. 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) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he was experiencing PTSD that contributed to his misconduct. He did provided documentation that he has been diagnosed with PTSD well after his discharge (2) Did the condition exist or experience occur during military service? Yes, the applicant reports experiencing PTSD while on active service. (3) Does the condition experience actually excuse or mitigate the discharge? No, there is insufficient evidence beyond self-report the applicant was experiencing PTSD while on active service. Erratic behavior, such as inability to maintain military standards or follow orders, can be a natural sequela to PTSD. However, the presence of repeated misconduct is not sufficient to establish a history of PTSD during active service. Lastly, the applicant contends he was experiencing a mental health condition that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration. BOARD DISCUSSION: 1. The Board found the available evidence sufficient to consider this case fully and fairly without a personal appearance by the applicant. 2. 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, 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 Medical Advisor. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. 3. A majority of the Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by PTSD or another condition. Based on a preponderance of evidence, a majority of the Board determined the character of service the applicant received upon separation was not in error or unjust. 4. The member in the minority found the letter form the Licensed Independent Social Worker provided by the applicant sufficient as a basis for relief under guidance for liberal consideration. The member in the minority determined the applicant’s character of service should be changed to honorable. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X : DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, USC, 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, USC, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 3. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides the ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 13 of this regulation provides for separation due to unsatisfactory performance when, in the commander’s judgment, the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely. Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions. b. 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. c. 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. 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 (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. 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. 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// ABCMR Record of Proceedings (cont) AR20230002202 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1