IN THE CASE OF: BOARD DATE: 6 July 2023 DOCKET NUMBER: AR20230000139 APPLICANT REQUESTS: An upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement 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, in effect: a. He had a rough time after returning from Iraq, he was young, broken, and lost. He received two Article 15s for missing formation but did not understand why he was so tired in the afternoon. He was told it was due to low iron, but taking iron pills has not helped and he is still suffering since 2003. He recently discovered he has sleep apnea, which he believes ruined his military career. b. He started drinking heavily and living recklessly after his deployment, which was out of his character. He started having arguments with leadership and even got into a shoving match once, which led to him being charged with assault and being separated 12 days early with an UOTHC discharge. After separation he struggled to keep a stable job. With prompting from family, he finally went to the Department of Veteran Affairs (VA) in 2010 and was diagnosed with post-traumatic stress disorder (PTSD). In 2011, he started receiving the help he needed. He has never recovered from that rough deployment and wanted to make the military a career. He is requesting some empathy as the system was not equipped to treat him when he first returned. 3. On his DD Form 149, the applicant notes PTSD and other health issues are related to his request, as contributing and mitigating factors in the circumstances that resulted in his separation. 4. On 17 August 2002, the applicant enlisted in the Regular Army for a 3-year service obligation. Upon completion of his training in October 2002, he was awarded military occupational specialty (MOS) 92F (Petroleum Supply Specialist). 5. He served in Southwest Asia from 7 March 2003 through 22 November 2003; his DD Form 214 (Certificate of Release or Discharge from Active Duty) also indicates he served in an imminent danger pay area (Iraq) during this period. 6. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions: a. On 18 March 2004, for being derelict in his duties from on or about 20 February 2004 to on or about 22 February 2004 (missing the continuation sheet). His punishment included reduction to E-2, forfeiture of $312.00 for one month, 14 days extra duty, and restriction (suspended until 19 September 2004). b. On 4 June 2004, for failing to go to his appointed place of duty at the time prescribed, on or about 19 March 2004, and for absenting himself from his unit on or about 4 May 2004 until 5 May 2004. His punishment included reduction to E-1, 14 days extra duty and restriction, and forfeiture of $278 for one month (suspended until 9 December 2004). c. On 7 January 2005, for failing to go to his appointed place of duty at the time prescribed; and making a false official statement on or about 21 October 2004; and for failing to go to his appointed place of duty at the time prescribed on or about 1 December 2004. His punishment included reduction to E-1, 14 days extra duty and forfeiture of $288.00. 7. The applicant’s service record contains nine DA Forms 4856 (Developmental Counseling Forms) showing he was counseled on several occasions between 14 February and 17 March 2005, for being absent without leave (AWOL), failing to go to his appointed place of duty at the time prescribed, failing to obey orders and regulations, and missing formations. 8. On 21 March 2005, the applicant underwent a separation examination. The supporting documentation shows he noted he had asthma/pollen allergy; painful shoulder, elbow, or wrist; recurrent back pains; numbness or tingling; knee trouble; frequent headaches; palpitation, pounding heart or abnormal heartbeat, but was in good health. The examining physician noted his prior issues were treated, he was in good health and qualified him for separation. He did not complain of trouble sleeping at that time. 9. On 14 April 2005, the applicant underwent a mental status examination. The supporting documentation shows he had no significant mental illness and had the mental capacity to understand and participate in board proceedings. 10. On 20 May 2005, the applicant's commander notified the applicant of his intent to initiate actions to separate him from service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for patterns of misconduct. As the specific reasons, the commander cited the applicant’s four periods of AWOL, missing numerous formations, failing to obey lawful orders, having an overall substandard performance and no longer being compatible with military service. 11. Subsequently, the applicant's commander formally recommended his separation, under the provisions of Army Regulation 635-200, Chapter 14-12b, for patterns of misconduct. He also recommended a waiver of further rehabilitative measures. 12. On 14 June 2005, the applicant consulted with counsel and acknowledged receipt of the commander's contemplated action. He was advised of the basis for the proposed separation action, his available rights, and the effects of waiving those rights. He requested a conditional waiver of his rights provided he received no less than an under honorable conditions (general) discharge and elected to not submit a statement in his own behalf. 13. On 21 June 2005, the applicant's intermediate commander recommend approval of the applicant’s request for a conditional waiver and that he be separated with a general discharge. 14. On 25 June 2005, several DA Form 3975 (Military Police (MP) Reports), were completed on the applicant showing: on 24 June 2005, the applicant was observed by two non-commissioned officers (NCOs) shoving a pizza delivery person while shouting in an irate manner. When the NCOs attempted to intervene, the applicant fled to his vehicle. When an NCO ordered him out of the vehicle, he moved the vehicle forward, striking the NCO’s legs slightly. He was again ordered out of the vehicle but again pulled forward causing the NCO to jump out of the way. The applicant then fled in his vehicle and was later apprehended. He was taken to the MP station and administered a breathalyzer which showed a .34 blood alcohol content. He was subsequently charged with failing to obey a general order, aggravated assault with a vehicle, and being drunk and disorderly. 15. On 29 June 2005, the applicant's intermediate commander recommended that in light of the applicant’s recent charge, he be separated with an UOTHC discharge characterization. He further recommended a waiver of further rehabilitative measures and he not be transferred to the Individual Ready Reserve. 16. On 5 July 2005, the applicant again consulted with counsel and acknowledged receipt of the commander's notification memorandum. He was advised of the basis for the proposed separation action, his available rights, and the effects of waiving those rights. He waived his previous conditional waiver and elected to not submit a statement in his own behalf. 17. On 18 July 2005, the separation authority approved a waiver of further rehabilitative requirements, the recommended separation with an UOTHC discharge, and directed the applicant be reduced the lowest enlisted grade. 18. On 26 July 2005, the applicant was discharged accordingly. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, Paragraph 14-12b, by reason of misconduct. His service was characterized as UOTHC, and he was credited with completing 2 years, 10 months, and 17 days of net active service this period. 19. 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. 20. 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/or 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 26 July 2005 under other than honorable conditions discharge stating his misconduct was due PTSD. c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 for the period of service under consideration shows he entered the active duty on 17 August 2002 and was discharged on 26 July 2005 under the separation authority provided by paragraph 14-12b of AR 635-200, Active Duty Enlisted Administrative Separations (6 June 2005): Pattern of Misconduct. His DD 214 shows the former petroleum supply specialist Served in Southwest Asia / Iraq from 7 March 2003 thru 22 November 2003. d. On 20 May 2005, the applicant’s company commander informed him of the initiation of separation under paragraph 14-12b of AR 635-200: “The reason for my proposed action is that: You have been absent without leave four times, missed numerous formations, failed to obey lawful orders, have an overall substandard performance and are no longer compatible with the military service.” e. On 25 June 2005, the applicant was charged by military police with failure to obey a general order, drunk and disorderly, and aggravated assault with a vehicle. From their report: On 050624, at 2333, this station was notified by SGT . of the above offenses. Investigation by U-70 (Larregui) revealed that between the above times on the above date SGT observed PFC [Applicant] push a Papa Johns delivery person while shouting in an irate manner. SGT . and SGT . while performing duties as the CQ [charge of quarters] BLDG 8401 (barracks) attempted to intervene, at which time PFC [Applicant] fled the scene on foot. PFC [Applicant] fled on foot to the parking lot where he entered a 1999 gold Chrysler UC# () . SGT . stood in front of the vehicle and ordered PFC [Applicant] to exit the vehicle. PFC [Applicant] drove the vehicle forward lightly striking SGT . in the legs. SGT . ordered PFC [Applicant] again to exit the vehicle at which time PFC [Applicant] proceeded to drive forward causing SGT . to jump out of the way. PFC [Applicant] proceeded to flee the scene. A BOLO [be on the look out] was issued to all gates and patrols. SGT . and SGT . rendered sworn written statements pertaining to the above offenses and were issued a DD Form 2701 [Initial Information for Victims and Witnesses of Crime]. SGT . refused medical attention and had no visible signs of injury. On 050624 at 1023, PFC [Applicant] was apprehended, searched, and transported to the military police station where he was administered a PBT [preliminary breath test] which indicated a .34 BAC [blood alcohol content]. PFC [Applicant] was advised of his legal rights which he invoked. PFC [Applicant] was further processed and released to his unit (SFC P.) on a DD form 2708 [Receipt for Pretrial/Post-trial Prisoner or Detained Person]. This is a final report.’ f. On 18 July 2005, the acting commander of the U.S. Quartermaster Center and School directed the applicant be discharged with an under other than honorable conditions characterization of service and he be reduced in rank to Private (E1). g. The applicant has just 5 clinical encounters in AHLTA; three for neck strain, one for sinusitis, and one for an upper respiratory infection. He underwent his pre- separation behavioral health evaluation on 14 April 2005. The provider documented a normal examination, opining the applicant had the mental capacity to understand and participate in proceedings, was mentally responsible, met the retention standards of AR 40-501 (Standards of Medical Fitness), and had neither a psychiatric nor personality disorder. h. JLV shows the applicant is has a service-connected disability rating of 70% for PTSD. Kurta Questions: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant has been diagnosed with a potentially mitigating BH condition, PTSD. (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: As there is a nexus between PTSD and difficulty with authority figures, avoidant behaviors, and self-medicating with alcohol, his PTSD mitigates his periods of absence, failure to repair, failures to obey orders, and charge of drunk and disorderly conduct. However, PTSD does not interfere with one’s ability to distinguish between right and wrong and act in accordance with the right and so cannot mitigate the applicant’s charge of aggravated assault with a vehicle. BOARD DISCUSSION: After reviewing the application and all supporting documents, 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 liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was discharged from active duty due to a pattern of misconduct. The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on 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 :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, 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. Title 10, U.S. Code, Section 1556, provides, the Secretary of the Army shall ensure that an applicant seeking corrective action by 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 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 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 such is merited by the Soldier’s overall record. 4. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions 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. 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 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. 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) AR20230000139 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1