IN THE CASE OF: BOARD DATE: 26 July 2023 DOCKET NUMBER: AR20230002675 APPLICANT REQUESTS: upgrade of his Under Honorable Conditions (General) discharge to Honorable and to appear before the Board via video/telephone. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Two DD Forms 689 (Individual Sick Slip) * Character reference letter * Department of Veterans Affairs (VA) Rating Decision FACTS: 1. The applicant did not file within the three-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, his discharge should be upgraded due to the fact he was suffering from undiagnosed Traumatic Brain Injury (TBI) that influenced his poor decision to drive under the influence (DUI) and ultimately led to his discharge. He also believes that if his battalion commander had been the separation authority, he would be retiring from the Army at this time. He believes that if he is granted a personal appearance before the Board, he will succeed in obtaining an upgrade. 3. The applicant enlisted in the Regular Army on 17 May 2000, for a period of 4 years. Upon completion of initial entry training, he was assigned to a unit at Fort Bragg, NC. 4. The applicant was given a General Officer Memorandum of Reprimand (GOMOR) as a result of being arrested on 22 April 2001, for suspicion of driving while impaired and refusing to complete a mandatory breath analysis test at the time of his arrest. He was afforded the opportunity to submit matters of rebuttal before a filing decision was made but declined to submit statements in his own behalf. His chain of command noted it was his second alcohol-related offense and recommended filing the GOMOR in his Official Military Personnel File (OMPF). The Commanding General concurred and directed the GOMOR be filed in his OMPF. 5. The applicant was promoted to the rank/grade of sergeant (SGT)/E-5 effective 10 October 2002. 6. On 3 January 2003, the applicant accepted field grade nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for DUI on or about 7 December 2002. His punishment consisted of reduction from SGT to specialist (SPC)/E-4; forfeiture of $692.00 pay for two months, suspended; and extra duty and restriction for 45 days. 7. The applicant underwent a pre-separation medical examination on 12 February 2003. He reported, in part, that he experienced a concussion, unconsciousness, and loss of memory from a parachute jump. He also had difficulty sleeping and experienced anxiety attacks almost every morning and depression caused by the environment and marital problems. He was determined to be medically qualified for retention and/or administrative separation. 8. On 13 February 2003, the applicant underwent a mental status evaluation. The examining psychiatrist determined he was mentally responsible for his behavior, could distinguish right from wrong, and possessed sufficient mental capacity to understand and participate in the proceedings. He was psychiatrically cleared for any administrative action deemed appropriate by command. 9. A memorandum from an Army Substance Abuse Program (ASAP) counselor on 6 March 2003 shows the applicant was deemed a rehabilitation failure for not making sufficient progress in the ASAP. 10. On 7 March 2003, the applicant accepted field grade NJP under the provisions of Article 15, of the UCMJ for through design missing unit movement to Afghanistan in support of Operation Enduring Freedom; failing to go at the time prescribed to his appointed place of duty; and willfully disobeying a lawful command from a superior commissioned officer to "not consume any alcohol," on or about 7 January 2003. His punishment consisted of reduction from SPC to private/E-1; forfeiture of $500.00 pay for two months, suspended; and extra duty and restriction for 45 days. 11. The applicant's immediate commander notified the applicant of his intent to initiate actions to separate him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for commission of a serious offense. The specific reasons cited were the applicant's DUI, being drunk on duty, missing movement, two offenses of failing to report, disobeying a superior commissioned officer, and breaking restriction. He was advised that he was being recommended for a under honorable conditions (general) discharge. 12. The applicant acknowledged receipt of the notification and consulted with counsel regarding the potential consequences of this type of separation prior rendering an election of rights. He elected not to submit statements in his own behalf. 13. The applicant's immediate commander formally recommended his separation prior to the expiration of his term of service under the provisions of Army Regulation 635-200, Chapter 14, by reason of commission of a serious offense. The battalion commander concurred with the separation action and recommended a general characterization of service. 14. On 11 March 2003, the separation authority approved the recommendation for separation and directed the applicant be issued a General Discharge Certificate. 15. Orders and the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) show he was discharged on 27 March 2003, under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct with separation code "JKQ." He was credited with 2 years, 10 months, and 11 days of net active service this period. His service was characterized as Under Honorable Conditions (General). He had no lost time during this period of service. 16. The applicant provides the following documents in support of his petition which are all available in their entirety for the Board's consideration. a. Two DD Forms 689 which show he sought medical attention during sick call on: * 6 June 2001 after hitting his head hard after a parachute landing, being knocked out, and sustaining a contusion to his forehead * 28 May 2002 for a follow-up visit after sustaining a concussion and unconsciousness during airborne operations b. A character reference letter from a former fellow Soldier who served with him in the 82nd Airborne Division, wherein the author speaks very highly of the applicant's maturity, commitment, motivation, and knowledge. c. A VA Rating Decision, dated 15 May 2023, shows the applicant's combined disability rating was raised from 80 to 90 percent effective 25 April 2023. In part, his evaluation of major depressive disorder, with anxious distress with TBI was raised from 50 to 70 percent. 17. In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 18. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is applying to the ABCMR requesting an upgrade of his 27 March 2003 discharge characterized as under honorable conditions (general). He states: “I was suffering from undiagnosed TBI [traumatic brain injury] which influenced my poor decision. This poor decision (D.U.I) led to my discharge. The administrative hearing was not held by my battalion commander as should have been the case. It was held by an officer whom I have never met. I believe had my battalion commander held the hearing I would now be retired.” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows he entered the regular Army on 17 May 2000 and was discharged under honorable conditions (general) on 27 March 2003 under the separation authority provided by paragraph 14-12c of AR 635-200, Personnel Separations – Enlisted Personnel (1 November 2000): Commission of a serious offense. It does not list a period of service in a hazardous duty pay area. d. The applicant, a private first class (E03) at the time, received a General Officer Letter of Reprimand on 8 May 2001: “On 22 April 2001 you were arrested in Fayetteville, North Carolina for suspicion of driving while impaired and refused to submit or failed to complete a mandatory breath analysis test at the time of your arrest.” e. Two Individual Sick Slips (DD form 689), one dated 6 June 2001 and the other 28 May 2002, state the applicant sustained a loss of consciousness during a parachute landing fall. f. The applicant, now a sergeant (E05), received a field grade Article 15 from his battalion commander on 3 January 2003: “In that you, did, at Fort Bragg, North Carolina, on or about 7 December 2002, at the intersection of Bragg Boulevard and Butner Road, physically control a vehicle, to wit: a passenger car, while you breath was .08 grams of alcohol per 210 liters of breath or greater as shown by chemical analysis. This is a violation of Article 111, UCMJ.” g. The applicant underwent his pre-separation physical examination on 12 February 2012. His Report of Medical Examination shows a normal examination, his only diagnosis was alcohol dependence, and he was found qualified for chapter 14 discharge. h. He underwent a mental status evaluation on 13 February 2003. The provider documented a normal examination noting the applicant had the mental capacity to understand and participate in the proceedings, was mentally responsible, and met the medical retention standards prescribed in Chapter 3, AR 40-501, Standards of Medical Fitness. The provider went on to state: “This soldier is mentally responsible for his behavior, can distinguish right from wrong, and possesses sufficient mental capacity. There is no evidence of an emotional or mental disorder of psychiatric significance to warrant disposition through medical channels. This soldier is psychiatrically cleared for any administrative action and or training deemed appropriate by Command. This service member meets the criteria for the following diagnosis: Axis I: Alcohol Abuse vs. Dependence Axis II: None Axis III: None.” i. For reference: Axis I: Mental Health and Substance Use Disorders. Axis II: Personality Disorders and Mental Retardation (now Intellectual Development Disorder) Axis III: General Medical Conditions. j. From his Army Substance Abuse Program counselor’s 6 March 2003 memorandum to the applicant’s commander: SPC [Applicant] was screened on 12 December 2002 as a DWI referral. As l result of that referral, SPC [Applicant] was enrolled in the Army Substance Abuse Program (ASAP). SPC [Applicant] had come to initiate treatment in April 2002 as a self-referral to complete court mandated alcohol treatment stemming from an off-post alcohol related traffic violation in April 2001. However, he did not return for his assessment, and was not enrolled in the program at that time. SPC [Applicant] was scheduled for one group session, which he attended, and was also scheduled for one individual session that he did not keep. In addition, an appointment was scheduled with the ASAP consulting psychiatrist for 7 January 2003 by the undersigned provider. However, that appointment was never given to the subject soldier. It is reflected as a "no-show" because the ASAP counselor did not cancel the appointment in time. Progress to date has been poor. In consultation with Command, it has been determined that the patient has failed to achieve satisfactory progress as evidenced by the following behavior: Despite compelling evidence of a pattern of substance abuse, he repeatedly denied this pattern and sought to avoid treatment by deploying with his unit. He had been offered intensive treatment in the event he was left behind. On 7 January, he missed a movement due to alcohol intoxication. Despite the career consequences of this action, he did not contact the ASAP until 6 March to pursue further treatment. He is therefore considered a rehabilitation failure.” k. The applicant received a second received field grade Article 15 from his now new battalion commander on 7 March 2003: “In that you, did, at or near Fort Bragg, North Carolina, on or about 7 January 2003, through design miss the movement of Company B, 3-504tn Parachute Infantry Regiment, to Afghanistan, in support of Operation Enduring Freedom, with which you were required in the course of duty to move. This is a violation of Article 87, UCMJ.” l. On 6 March 2003, the applicant’s company commander informed him of the initiation of separation action under be processed under paragraph 14-12c of AR 635 200: “The reason for this proposed action: DUI, Drunk on Duty, Missing Movement, 2 offenses of Failure to Report, disobeying a superior commissioned officer, and breaking restriction. m. On 11 March 2003, the brigade commander approved the applicant’s separation under paragraph 14-12c of AR 635-200 and directed he be separated from service with a General Discharge Certificate. n. Review of his records in JLV shows he has been diagnosed with service- connected major depressive disorder. Kurta Questions: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? YES: Major Depressive Disorder; mild TBI (2) Did the condition exist or experience occur during military service? YES (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The applicant’s records contain two Individual Sick Slips (DD form 689), one dated 6 June 2001 and the other 28 May 2002, which state the applicant sustained a loss of consciousness (LOC) during two parachute landing falls. From these sick slips, we can infer that these episodes of LOC were due to hard landings wherein the applicant hit his head on the ground during his parachute jumps. Given the association between head injuries and self-medication with alcohol, there is a nexus between these head injuries, his 3 January 2003 arrest for DUI and his act of being drunk on duty. o. The 22 April 2001 DUI arrest, however, is not mitigated because it occurred before his two documented head injuries. VA documentation indicates that the applicant is also service connected for Major Depressive Disorder. As there is an association between MDD and avoidant behavior, there is a nexus between his diagnosis of MDD, his missing movement and his two offenses of failure to report. Neither MDD nor mild TBI mitigates the applicant’s offenses of disobeying a superior commissioned officer or breaking restriction. 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 neither the applicant’s MDD nor his mild TBI mitigates his offenses of disobeying a superior commissioned and breaking restrictions. The Board found insufficient evidence of in-service mitigating factors to overcome the misconduct. The Board noted, the applicant provided insufficient evidence of post- service honorable conduct that might have mitigated the discharge characterization. 2. The Board determined, the applicant was discharged for commission of a serious offense and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. Therefore, the Board denied relief. 3. The applicant’s request for a personal appearance hearing was carefully considered. In this case, 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. 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 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 three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, USC, Section 1556, provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 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 that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. 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. 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. 5. Army Regulation 635-5-1 (Separation Program Designator Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the separation codes to be entered on the DD Form 214. It states that the separation code "JKQ" is an appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 14, by reason of misconduct. 6. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Navy Records (BCM/NR) to carefully consider the revised post-traumatic stress disorder (PTSD) criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions (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. 7. 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 DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; traumatic brain injury; sexual assault; or sexual harassment. 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. 8. 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) AR20230002675 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1