IN THE CASE OF: BOARD DATE: 4 October 2023 DOCKET NUMBER: AR20230002780 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, Department of Veterans Affairs (VA), Verification of Honorable Service, dated 1 November 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, he was diagnosed by a VA doctor as having post-traumatic stress disorder (PTSD) which is service connected. All his paperwork states he was honorably discharged. 3. The applicant enlisted in the Regular Army on 13 June 2000 for a 3-year period. The highest rank he attained was private/E-2. 4. The applicant was formally counseled on 12 December 2000 and 4 January 2001. Areas of emphasis covered in the counseling include, but are not limited to: * missing movement * sleeping in bunk during duty hours * failure to obey a lawful order * chewing tobacco 5. The applicant accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 9 January 2001, for disobeying a lawful order on or about 4 January 2001, by wrongfully using and having in his possession tobacco products while in a training status. His punishment consisted of reduction to private/E-1, forfeiture of $243.00 pay, extra duty for 14 days, and 14 days of restriction. 6. The applicant was formally counseled on three occasions from 17 January 2001 and 18 January 2001. Areas of emphasis covered in the counseling include, but are not limited to: * failure to be at appointed place of duty * failure to obey a lawful order * improper sign out procedures * being in unauthorized places * sleeping in bunk during duty hours * failure to follow orders * insubordination * violation of restriction 7. The applicant's commander notified the applicant on 23 January 2001 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 poor performance and conduct unbecoming of 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. 8. 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. 9. The applicant's immediate commander formally recommended his separation under the provisions of Army Regulation 635-200, Chapter 13. 10. On 24 January 2001, the separation authority approved the recommended separation under the provisions of Army Regulation 635-200, Chapter 13, waived the rehabilitation requirements, and directed the issuance of a General Discharge Certificate. 11. A DA Form 3822-R (Report of Mental Status Evaluation), dated 31 January 2001, shows the applicant was psychiatrically cleared to participate in any administrative action deemed appropriate by his command. 12. The applicant was discharged on 7 February 2001 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). He was credited with 7 months and 25 days of net active service. He was not awarded a military occupational specialty. 13. The applicant provides a letter from the VA, dated 1 November 2022, which contains a cut-out card to serve as verification of his honorable service in the U.S. Army. 14. 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. 15. The Board should consider the applicant's argument and/or evidence in accordance with the published equity, injustice, or clemency determination guidance. 16. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his general, under honorable conditions discharge to honorable. 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 13 June 2000. * The applicant was repeatedly formally counseled for missing movement, sleeping in bunk during duty hours, failure to obey a lawful order, chewing tobacco, failure to be at appointed place of duty, failure to obey a lawful order, improper sign out procedures, being in unauthorized places, failure to follow orders, insubordination, and violation of restriction. * Applicant accepted non-judicial punishment under Article 15 of the Uniform Code of Military Justice on 9 January 2001, for disobeying a lawful order on or about 4 January 2001, by wrongfully using and having in his possession tobacco products while in a training status. * Applicant's commander notified him on 23 January 2001 of 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 poor performance and conduct unbecoming of a Soldier as the specific reasons for the proposed action. * Applicant was discharged on 7 February 2001 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). He was credited with 7 months and 25 days of net active service. He was not awarded a military occupational specialty. c. 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), and DD Form 214. 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. Due to the period of service, no active-duty electronic medical records were available for review. However, the applicant is 90% service connected for PTSD. The C & P evaluation that resulted in his service connection on 23 May 2022 was not available for review. VA electronic medical records (JLV) available for review evidence a C & P evaluation dated 13 September 2017 indicating his previous application for service- connection in 2014 was denied. During this assessment, the applicant was diagnosed with bipolar disorder. The medical provider opined that the condition claimed was not caused by military service. The applicant's claimed non-combat-related stressor could not be verified. Regarding the question of markers, the veteran's behavioral problems which led to his early discharge from active duty, were considered present prior to his entering military service. The provider noted that his STR and separation physical examination were negative for any mental disorders and there was no evidence of the veteran being diagnosed with or treated for any mental disorders until several years after he was discharged from military service. e. Based on the available information and his service connection via the VA, it is the opinion of the Agency Behavioral Health Advisor that there is minimal, though sufficient evidence that the applicant had a behavioral health condition that mitigates his discharge. 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 a mitigating condition. (2) Did the condition exist or experience occur during military service? Yes. The applicant is 90% service-connected for PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The applicant was discharged for poor performance and conduct unbecoming of a soldier including failure to be at appointed place of duty, failure to obey a lawful order, improper sign out procedures, being in unauthorized places, sleeping in bunk during duty hours, failure to follow orders, insubordination, and violation of restriction. However, given the nexus between PTSD and avoidance and difficulty with authority, the basis for his discharge is fully mitigated. 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 considered the advising official finding a nexus between PTSD and avoidance and difficulty with authority, the basis for his discharge is fully mitigated. The Board found insufficient evidence of in-service mitigation to overcome the misconduct. 2. The Board noted, the applicant did not receive a military occupational specialty (MOS) and was discharged for reason of unsatisfactory performance. The Board found the applicant’s service record exhibits numerous instances of misconduct during his enlistment period for 7 months and 25 days of net active service this period. The applicant was provided an under honorable conditions (General) characterization of service. The Board agreed based on the applicant’s misconduct 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. Furthermore, the determined based on regulatory guidance a separation will be described as an entry-level separation, with service uncharacterized, if the separation action is initiated while a Soldier is in entry-level status. Soldiers are authorized and honorable discharge while in entry-level status only if they complete their active-duty schooling and earn their MOS. Based on this, 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 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. 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) AR20230002780 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1