IN THE CASE OF: BOARD DATE: 18 October 2023 DOCKET NUMBER: AR20230003120 APPLICANT REQUESTS: * an upgrade of his general, under honorable conditions discharge to honorable * a personal appearance before the Board 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), 19 August 1987 * Superior Court of Name Change Judgement, 30 June 1997 * Department of Veteran Affairs (VA) Documents (17 pages) * State of Birth Certificate, 28 December 2012 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 that he is requesting his characterization of service be upgraded from general, under honorable conditions to honorable. He was diagnosed with post- traumatic stress disorder (PTSD) in 2022 and was service-connected by the VA. As a result of the diagnosis, he received a 50% disability rating from the VA, effective 1 June 2021. He suffered a traumatic brain injury (TBI) during his military service that was never treated and misdiagnosed. He believes this led to him committing the minor infractions which resulted in his discharge from the service. 3. The applicant provides: a. A DD Form 214, for his active service from 15 March 1985 to 19 August 1987, to be referenced in the service record. b. A name change order from the Superior Court of that shows the applicant changed his name from., to, effective 30 June 1997, and that he would be able to officially assume the name from and after 30 July 1997. c. A State Department of Health Birth Certificate that was reissued on 28 December 2012, that shows the applicant as the child. d. Several VA documents that include decisions and ratings pertaining to the applicant’s rating award of 50 percent disability for PTSD, effective 1 June 2021. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 14 March 1985 for a term of 4 years. b. The applicant received seven DA Forms 4856-R (General Counseling Form) from 17 May 1986 to 1 June 1987, for numerous instances of failing to report and disobeying lawful orders, among other infractions of misconduct. c. On 29 September 1986, the applicant accepted nonjudicial punishment for violation of Article 92 of the UCMJ as a result of failing to present, upon request of his unit commander, valid and bona fide documentation showing the lawful disposition of six video cassette recorders. His punishment included reduction to Private First Class (E-3), forfeiture of $376 for two months, extra duty for 30 days, and restriction for 45 days. d. On 5 January 1987, the applicant accepted nonjudicial punishment for two violations of Article 92 of the UCMJ as a result of failure to report to the CRC inspection and using an unauthorized pass to go downtown. His punishment included extra duty and restriction for 14 days. e. On 27 April 1987, the applicant accepted nonjudicial punishment for violating Article 86 of the UCMJ as a result of failing to report to his appointed place of duty. His punishment included reduction to Private (E-2) and forfeiture of $172 pay for one month, suspended, for 60 days to be automatically remitted if not vacated before 21 June 1987; extra duty and restriction for 14 days. f. On 28 May 1987, the applicant’s suspended punishment of reduction to Private (E-2) and forfeiture of $172 pay per month were vacated for failure to report. g. On 12 June 1987, the applicant’s immediate recommended a bar to reenlistment based on his numerous counselings and UCMJ violations. The applicant acknowledged that he was counseled and advised of the basis for the action and that he was provided a copy of the commander’s recommendation to bar him from further reenlistment. The approval authority approved the bar certificate on 15 June 1987. h. A DA Form 3822-R (Report of Mental Status Evaluation), dated 21 July 1987, confirmed the applicant was referred for a mental evaluation because he was being considered for discharge. The physician noted in the remarks, the applicant had a normal mental status exam and there were no abnormalities found. The evaluation further indicated: * normal behavior and fully alert * fully oriented and unremarkable mood or effect * clear thinking process and normal thought content * he had the mental capacity to understand and participate in the proceedings * he was mentally responsible i. A Standard Form 93 (Report of Medical History) shows on 25 July 1987, a medical examination was performed for the applicant in preparation for separation. The applicant indicated in block 8 (Statement of Examinee’s Present Health and Medications Currently Used) he was in “good health, no medication BLT.” Additionally, he selected “yes” as a response to having or ever having frequent or severe headaches, ear, nose, or throat trouble, car, train, sea, or air sickness, frequent trouble sleeping, and depression or excessive worry. The provider annotated that he complained of numerous headaches over the past month since being notified of separation, but he was currently asymptomatic. He also states that the applicant complains of frequent sleeping problems, episodes of depression and suicidal ideations. j. On 30 July 1987, the applicant’s immediate commander notified the applicant of his intent to separate him under the provisions of Chapter 14, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for minor disciplinary infractions. The specific reasons for his proposed recommendation were for his unlawful disposition of duty free items, unauthorized absence/pass, and absence from place of duty. k. After consultation with legal counsel, the applicant acknowledged: * the rights available to him and the effect of waiving said rights * he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him * he may apply to the Army Discharge Review Board or the ABCMR for an upgrade request * he will be ineligible to apply for enlistment in the U.S. Army for a period of two years following discharge l. On 31 July 1987, the immediate commander-initiated separation action against the applicant for minor disciplinary infractions. He recommended that his period of service be characterized as general, under honorable conditions. The intermediate commander recommended approval. m. On 13 August 1987, consistent with the chain of command recommendations, the separation authority approved the discharge recommendation for immediate separation under the provisions of AR 635-200, Chapter 14-12a, for minor disciplinary infractions. He would be issued a General Discharge Certificate. n. A review of the applicant’s service record contains sufficient evidence to support he is eligible for awards that are not annotated on his DD Form 214 for the period ending 19 August 1987. This award will be added to his DD Form 214 as administrative corrections and will not be considered by the Board, to show in item 13. o. The applicant was discharged from active duty on 19 August 1987 with a general, under honorable conditions characterization of service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 5 months, and 5 days of active service with no lost time. He was assigned separation code JKN and the narrative reason for separation listed as “Misconduct – Minor Disciplinary Infractions,” with a reentry code of 3/3C. 5. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 6. By regulation (AR 15-185), an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 7. By regulation (AR 635-5), the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. 8. By regulation (AR 635-200), action will be taken to separate a Soldier for misconduct, such as patterns of misconduct, when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory Soldier, further effort is unlikely to succeed. 9. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his general, under honorable conditions discharge to an honorable. 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 14 March 1985. * The applicant received seven DA Forms 4856-R (General Counseling Form) from 17 May 1986 to 1 June 1987, for numerous instances of failing to report and disobeying lawful orders, among other infractions of misconduct. * On 29 September 1986, the applicant accepted nonjudicial punishment (NJP) as a result of failing to present, upon request of his unit commander, valid and bona fide documentation showing the lawful disposition of six video cassette recorders. * On 5 January 1987, the applicant accepted NJP for two violations of failure to report to the CRC inspection and using an unauthorized pass to go downtown. * On 27 April 1987, the applicant accepted nonjudicial punishment for violating Article 86 of the UCMJ as a result of failing to report to his appointed place of duty. * On 28 May 1987, the applicant’s suspended punishment of reduction to Private (E-2) and forfeiture of $172 pay per month were vacated for failure to report. * On 12 June 1987, the applicant’s immediate recommended a bar to reenlistment. It was approved on 15 June 1987. * The applicant’s commander notified him on 30 July 1987 of his intent to initiate separation action against him under AR 635-200, paragraph 14, for minor disciplinary infractions. The specific reasons for his proposed recommendation were for his unlawful disposition of duty-free items, unauthorized absence/pass, and absence from place of duty. * The applicant was discharged on 19 August 1987, with 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), his DD Form 214, documents from his service record and separation, as well as Department of Veteran Affairs documents, birth certificate, documentation pertaining to a name change, and VBMS documents obtained by ARBA. 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 he’s been diagnosed with PTSD stemming from time in service, and his PTSD as well as traumatic brain injury (TBI) mitigate his discharge. The applicant asserts he suffered a TBI while in the service and that it was never treated and misdiagnosed. He believes this contributed to his minor infractions which resulted in his discharge. e. The applicant’s time in service predates use of electronic health records (EHR) by the Army, hence no mental health records were available for review. His service record and supporting documents did not contain his service treatment records (STR). However, the applicant’s service and separation record did include his separation mental status exam (MSE) as well as his separation physical. He was seen for an MSE on 21 July 1987. The applicant was found to have the mental capacity to understand and participate in the proceedings, was mentally responsible, and the provider noted the applicant had a normal mental status exam and there were no abnormalities found. He completed his separation medical examination on 25 July 1987 His report of medical Examination shows that he reported he was in good health, however he reported frequent headaches, other medical concerns (see document) as well as problems with sleep, episodes of depression or excessive worry, and suicidal ideation. The provider did indicate that the sleep issues and headaches started after the chapter process began. He did not comment on the length or etiology of the anxiety and depression. No other records were provided. There was no record of a TBI or diagnosis of PTSD while he was in the service. f. Per the applicant’s submitted VA documents, he is 50% service connected for PTSD (effective 1 June 2021) though his current EHR states he is 100% for PTSD. The applicant has been engaged in care at the VA since 2022. He has had one mental health related encounter (30 AUG 2022) where he reported being engaged with care in the community but planned to slowly transition to the VA. His compensation and pension (C&P) evaluations from 21 June 2022 indicates he witnessed a child die during a moving vehicle accident (MVA). He was seen again for PTSD Disability Benefits Questionnaire on 20 July 2023, with this case included a buddy statement and other statement of support, that gave additional detail to the gruesomeness of his experience, as well as the psychological changes that occurred after. Through review of JLV, this applicant did have “Community Health Summaries and Documents” available. His records indicate that he has been seen for PTSD and depression by a civilian provider (social worker through SET Family Medical Clinics) May 2021 through January 2023. No other medical records were provided. 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 mental health concerns during his time in service and has since been diagnosed with a mitigating mental health condition, which is 100% service connected. 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 and TBI as a mitigating factor. (2) Did the condition exist or experience occur during military service? Yes, the applicant asserts the symptoms were present during his time in service. The applicant has also been service connected for PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. There is evidence the applicant was struggling with depression and anxiety during his time in service and that he experienced a significant/traumatic event, though there is no evidence of a diagnosis or treatment for PTSD or a TBI. He has since been service connected at 100% for PTSD. Hence, per liberal consideration guidance, his contention is worthy of the board’s consideration. Of note, avoidance behaviors, such as failure to reports and unauthorized passes, are consistent with natural history and sequalae of PTSD. There is a nexus between PTSD and this misconduct which partially led to his discharge. However, there is no nexus between PTSD and unlawful disposition of duty-free items. Hence, this advisor supports at minimum, a partial upgrade. 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 findings that there is partially sufficient evidence to support the applicant had mental health concerns during his time in service and has since been diagnosed with a mitigating mental health condition, which is 100% service connected. The Board noted the opine finding the applicant struggled with depression and anxiety during his time in the service, although there is insufficient evidence that support a diagnosis or treatment for a TBI or PTSD. 2. The Board under liberal consideration, factored in the applicant self-authored statement and the advising official opine. The Board agreed there is insufficient evidence in the record or mitigating factors presented by the applicant to provide a nexus between PTSD and the applicant’s misconduct of unlawful disposition of stealing. The applicant provided insufficient evidence of post service achievements or characters letters for the Board to weigh a clemency determination. Furthermore, the applicant was discharged for misconduct 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. 3. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction be completed to more accurately depict the military service of the applicant. 4. 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: Except for the correction addressed in Administrative Note(s) below, 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 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. ADMINSTRATIVE NOTES: A review of the applicant’s records shows he is authorized additional awards not annotated on his DD Form 214 for the period ending 19 August 1987. As a result, amend his DD Form 214 by adding the Korea Defense Service Medal. 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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. 3. Army Regulation 635-5 (Separation Documents) states the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. 4. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. An honorable discharge is a separation with honor. 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. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 of the regulation states a member may be separated when it is determined that he or she is unqualified for further military service because of minor disciplinary infractions. The service of members separated because of misconduct will be characterized as under other than honorable conditions, or general, under honorable conditions as warranted by their military record. 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 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, 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 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. 7. 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) AR20230003120 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1