IN THE CASE OF: BOARD DATE: 18 August 2023 DOCKET NUMBER: AR20230005849 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 only that he is requesting an upgrade. 3. On the applicant's DD Form 149), he indicates post-traumatic stress disorder (PTSD), Traumatic Brain Injury (TBI) and other mental health issues as contributing and mitigating factors in the circumstances that resulted in his separation. 4. Further, on his application at item 11 (Category), the applicant marked for consideration all blocks except Other and at item 20 (Relation To Service) member the block incapacitated is marked. However, the applicant has not provided any clarifying information, evidence, or argument to support any of these factors. 5. The applicant enlisted in the Regular Army on 18 April 1989, completed training with award of a military occupational specialty 35M (Interrogator). The highest grade he held was E-4. The service record is void of the enlistment documents and the DD Form 214 (Certificate of Release of Discharge from Active Duty) was used as the source document). 6. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on 10 November 1990 for disrespectful language toward a superior noncommissioned officer. 7. Between 13 November 1990 and 20 Aug 1991, the applicant received negative counseling statements on nine occasions for infractions including deficiency in his duty performance, conduct and overall behavior; multiple occurrences of failure to report for guard duty, failure to obey a lawful order, failure to repair, a vehicular incident, and failure of the Army Physical Fitness on three occasions. 8. A DA Form 3822-R (Report of Mental Status Evaluation), dated 1 August 1991, shows the applicant had no abnormalities in behavior, level of orientation, mood, thinking process, thought content, or memory. He was determined to be mentally capable to understand and participate in the proceedings deemed appropriate by command. 9. The applicant's immediate commander submitted a memorandum on 15 August 1991 stating the applicant clearly had no potential for useful service under conditions of full mobilization, and in a second memorandum, he requested a waiver of a rehabilitative transfer. 10. The service record is void of the commander's notification for separation. 11. The applicant consulted with legal counsel on 16 August 1991. He was advised of the basis for the contemplated discharge, the possible effects of an under honorable conditions discharge, and the procedures and rights that were available to him. He elected to submit a statement in his own behalf. 12. The applicant provided a rebuttal statement, dated 23 August 1991, which outlined why he felt that his discharge would not benefit the Army. He noted his military training, service as an interrogator, his language skills, service in Panama and Southwest Asia. He stated that English was a second language and often caused a language barrier and he had been denied enrollment in classes to improve his English skills. 13. The applicant's immediate commander formally recommended his separation from service on 29 August 1991 under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance. 14. On 17 October 1991, the separation authority approved the discharge recommendation and the waiver of rehabilitation transfer and directed the applicant be issued a General Discharge Certificate. 15. The applicant was discharged on 23 October 1991, in the pay grade of E-4. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance and his service characterization was under honorable conditions (general). He was credited with 2 years, 6 months, and 6 days of net active service. 16. On 16 November 1997, the applicant was notified the Army Discharge Review Board (ADRB) reviewed the applicant's discharge processing but found it proper and equitable. The ADRB denied his request for an upgrade of his discharge. 17. On 11 June 2023, the applicant was notified by the Army Review Boards Agency that he was required to provide a copy of medical documentation to support his claim of PTSD. The applicant was provided 30 days with a suspense of 11 July 2023. The applicant has not provided a response to date. 18. In determining whether to grant relief the Boards for Correction of Military/Navy Records (BCM/NR) can consider the applicant s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 19. MEDICAL REVIEW: a. Background: The applicant is requesting his under honorable conditions (general) discharge be upgraded to an honorable discharge. The applicant asserts PTSD and TBI as mitigating factors 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: * The applicant enlisted in the Regular Army on 18 April 1989. * Applicant served in Southwest Asia 23 October 1990 to 15 August 1991 (during Desert Shield and Storm). * The applicant accepted nonjudicial punishment (NJP) on 10 November 1990 for disrespectful language toward a superior noncommissioned officer. * Between 13 November 1990 and 20 Aug 1991, the applicant received negative counseling statements on nine occasions for infractions including deficiency in his duty performance, conduct and overall behavior; multiple occurrences of failure to report for guard duty, failure to obey a lawful order, failure to repair, a vehicular incident, and failure of the Army Physical Fitness on three occasions. * The applicant was discharged on 23 October 1991 under AR 635-200, Chapter 13, for unsatisfactory performance and his service characterization was under honorable conditions (general). * The applicant has previously applied for a discharge upgrade. He was denied by ADRB on 16 November 1997 (fair and equitable). 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), DD 214 and other documents from his service record. 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 that PTSD and TBI are related to his request for an upgrade, however he provided no other information on this application as to why he was requesting an upgrade or what role PTSD and TBI play in his request. There are no electronic health records (EHR) from his time in service (given the years he served), and the applicant did not supply any other medical or mental health. His service record contained his Mental Status Exam (MSE), as part of his separation process. The applicant completed his MSE on 1 August 1991. He was found to have the mental capacity to understand and participate in the proceedings, was mentally responsible, met medical retention requirements per AR 40-501 chapter 3, and did not receive any mental health diagnoses. There is no indication the applicant was ever diagnosed with a mental health condition, nor that he received any mental health care. e. Per the applicant s EHR, the applicant s first encounters with the VA started in 1991. Evidence of first engaged with mental health starts in 1996 when he was referred from Neurology (secondary to severe head trauma history and having been in a coma - information varies on length [months to years]). However, at that time the applicant denied mental health concerns and care. The applicant, though, was seen for neuropsychological testing on 5 January 1998. The applicant had suffered a severe closed head injury on 2 February 1994 when he fell out of a moving vehicle. He sustained a left subdural hematoma, a left temporal contusion and a right parietal epidural hematoma. Testing from 1994 to 1996 showed improvement though, there were continued deficits in his cognitive functioning. The results in 1998 were consistent with the previous exam in 1996; Slowed information processing, verbal memory impairment and executive dysfunction are all significant. And more specifically, Executive functions are significantly impaired. Self- monitoring, cognitive flexibility, impulse control and judgment are all compromised. More recent valuations (2009) continue to give consistent results. The applicant does not appear to have engaged in therapy or psychiatry although has actively engaged in the HUD-VASH program to address homelessness, and the Veteran Justice Outreach program to address legal concerns. The applicant has been diagnosed with unspecified mood (affective) disorder due to a general medical condition and frontal lobe and executive functioning deficit. There is a C&P evaluation in the applicant s chart from 27 March 2015, however the whole assessment could not be completed at that time as the veteran walked out. It was presumed that his cognitive disorder and history of serious brain injury played a role in the interaction (he left seemingly angry, with no clear reason why). No further C&P could be found. The applicant is not service connected. In summary, the applicant does not hold a PTSD diagnosis. And the applicant does have a history of significant head trauma, however this occurred in 1994, several years after his discharge. The applicant did not provide any other medical or mental health records to support is assertions. f. It is the opinion of the Agency Behavioral Health Advisor that there is insufficient evidence to indicate the applicant had a mitigating condition or experience during his time in service. Since his discharge, the applicant did experience a severe head trauma, however this would hold no bearing on the misconduct that occurred prior to his injury. 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? Unknown. The applicant did not specify when he experienced PTSD or TBI. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The applicant recorded PTSD and TBI as being related to his request for an upgrade, however he gave no further information. There is no evidence the applicant was ever experiencing symptoms consistent with, or diagnosed with, a mental health condition or TBI during his time in service. The only medical documentation from his time in service was his MSE, which cleared him for separation, did not record any conditions or disorders, and stated he met medical retention standards. There were no other medical or mental health records available, however this is to be expected given the years he served. There is mental health data available in his EHR since his discharge, though the applicant is not service connected, and has never been diagnosed with PTSD. He has suffered a severe head trauma and has a mood disorder secondary to this injury. However, this traumatic brain injury and resulting mood disorder occurred after his discharge. In summary, there is insufficient evidence the applicant experienced a mitigating condition during his time in service, however per Liberal Consideration, his contention is sufficient to warrant the board s consideration. BOARD DISCUSSION: 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 request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, record of service, frequency and nature of his misconduct, reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided insufficient evidence of post-service achievements or letters of support to weigh a clemency determination. Based upon a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :xx :xx :xx DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined 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, 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. 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. 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 ABCMR will decide cases on the evidence of record. It is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: a. 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. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 13 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 unsatisfactory performance. The service of members separated because of unsatisfactory performance will be characterized as honorable or 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. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records, on 25 July 2018 [Wilkie Memorandum], 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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.) AR20230005849 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1