IN THE CASE OF: BOARD DATE: 6 July 2023 DOCKET NUMBER: AR20230001558 APPLICANT’S REQUEST: Upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Army Discharge Review Board (ADRB)) * Department of Veterans Affairs (VA) Rating Decision * VA Form 21-0781 (Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD)) * Two memoranda FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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, from the date he enlisted until his return from Iraq, he served honorably with no behavioral health issues or nonjudicial punishments (NJP). After his redeployment, he did not adjust well and became a burden to his unit. Nonetheless, he now asks the Board to find that his separation resulted from behavioral issues, not criminal actions, and to take into account his otherwise honorable service while in combat. The applicant recognizes he committed a serious offense not mitigated through counseling, training, or the Uniform Code of Military Justice (UCMJ), but he points out that his leadership did not address his mental disorder and made no mention of it when considering his character of service. 3. The applicant provides a VA Rating Decision, dated 12 October 2022, which shows the VA granted him service-connection for adjustment disorder with mixed anxiety and depressed mood; the decision further states that compensation is not payable for this condition. In addition, the applicant submits the following: a. A VA Form 21-0781 dated 20 June 2022, wherein the applicant describes how he incurred his behavioral health conditions. He states he joined his unit in Iraq as an MRAP (Mine-Resistant Ambush-Protected) vehicle driver, and he served in a forward support company that directly supported combat units. In that capacity, he and the other drivers were conducting daily resupply missions, and they lived in constant fear of improvised explosive devices (IED). The drivers talked about IEDs continuously, and they were aware that the routes they drove were being targeted; there was never a "routine" supply run, and the applicant and his fellow drivers were scared all of the time. After the applicant redeployed, he received an adjustment disorder diagnosis. b. Two documents pertaining to the applicant's separation: the first is the commander's separation recommendation, in which the commander cites the regulatory authority for separation, states his recommendation for an under other than honorable conditions discharge, and affirms that the applicant did not have medical or other issues that merited consideration for a character of service determination. The second document is the applicant's mental status evaluation, completed 2 June 2009; a licensed clinical psychologist diagnosed the applicant with "Adjustment disorder with mixed mood." 4. A review of the applicant's service record shows the following: a. On 25 October 2007, the applicant enlisted into the Regular Army for 3 years and 22 weeks. Upon completion of initial entry training and the award of military occupational specialty 88M (Motor Transport Operator), orders assigned him to Fort Polk, LA, and he arrived, on or about 19 March 2008. b. On 15 May 2008, the applicant deployed to Iraq. Effective 1 July 2008, his chain of command promoted him to private first class (PFC)/E-3. On 1 January 2009, the applicant redeployed to Fort Polk. c. On 7 April 2009, the applicant provided a urine sample and, on 17 April 2009, the results came back positive for THC (Tetrahydrocannabinol, the primary psychoactive ingredient in marijuana). d. On 19 May 2009, the applicant accepted NJP from his battalion commander for UCMJ violations. (1) The battalion commander charged the applicant with the following: * Article 91 (Disrespect toward a Noncommissioned Officer (NCO)), four counts of disrespectful language and deportment, occurring on 9 and 10 April 2009 * Article 91 (Willful Disobedience of an NCO's lawful Order), one count for willfully disobeying an order, on 14 April 2009 * Article 112a (Wrongful Use of a Controlled Substance: Marijuana), one count (2) After a closed hearing, the battalion commander found the applicant guilty and directed punishments that included the applicant's reduction to private (PV1)/E-1. d. On 22 May 2009, the applicant provided another urine sample that returned positive for THC. On 2 June 2009, the applicant underwent a mental status evaluation, in which the behavioral health provider provided an adjustment disorder diagnosis. On 19 June 2009, the applicant's unit reported his duty status as "Failure to Report"; on 22 June 2009, the unit changed the applicant's status to absent without leave (AWOL). Later, on or about 23 June 2009, the applicant returned to military control. e. On 27 July 2009, the applicant's commander advised him, via memorandum, that he was initiating separation action against the applicant, under the provisions of paragraph 14-12c (Commission of a Serious Offense), chapter 14 (Separation for Misconduct), Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations). (1) The commander stated he took this action because the applicant had: * abused illegal drugs twice, between 7 March to 7 April 2009, and again between 22 April and 22 May 2009 * possessed 2.1 grams of marijuana, on 22 May 2009 * possessed a 40 caliber semiautomatic pistol, on 22 May 2009 * departed the unit in an AWOL status, from 22 to 23 June 2009 (2) The commander informed the applicant he would be recommending him for an under other than honorable conditions character of service, but the final decision rested with the separation authority. f. On 6 August 2009, after consulting with counsel, the applicant acknowledged counsel had advised him of the basis for the separation action and informed him of his rights and the effect of waiving those rights. The applicant waived presenting his case before an administrative separation board and elected not to submit statements in his own behalf. g. On 18 August 2009, the separation authority approved the commander's separation recommendation and directed the applicant's under other than honorable conditions discharge; on 21 August 2009, orders discharged the applicant accordingly. h. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was discharged under the provisions of chapter 14-12c of AR 635-200 with an under other than honorable conditions discharge. He completed 1 year, 9 months, and 27 days of his enlistment contract. Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) listed the following: * Valorous Unit Award * Global War on Terrorism Service Medal * Iraq Campaign Medal with one bronze service star * Army Service Ribbon * Overseas Service Ribbon i. On 14 March 2018, the applicant petitioned the ADRB, requesting an upgraded character of service. (1) The applicant indicated the upgrade would allow him to receive medical and housing benefits and help him support himself and his family; he noted that he had served in a combat zone and, although he was relieved of his duties early, his time in combat drove him to abuse drugs and alcohol. (2) On 10 June 2020, the ADRB voted to deny relief but noted the applicant's DD Form 214 inaccurately stated the authority and reason for separation; Item 25 (Separation Authority) showed, "PARA 14-12C (2)," item 26 (Separation Code) listed "JKK," and item 28 (Narrative Reason for Separation) indicated, "MISCONDUCT (DRUG ABUSE)." The ADRB directed the following revisions: * Item 25 – "PARA 14-12C" * Item 26 – "JKQ" * Item 28 – "MISCONDUCT (SERIOUS OFFENSE)" 5. The applicant requests the upgrade of his under other than honorable conditions discharge. a. During the applicant's era of service, commanders were to initiate separation action against Soldiers who had committed a serious military or civilian offense, and for which the UCMJ authorized a punitive discharge for the same or similar offense. Per paragraph 14-12c, AR 635-200, abuse of illegal drugs was deemed serious misconduct. b. According to the Manual for Courts-Martial, in effect at the time, a punitive discharge was among the authorized maximum punishments for violations of Article 112a (Wrongful Use, Possession, Manufacture, or Introduction of Controlled Substances). 6. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 7. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 8. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under other than honorable conditions discharge. He contends he had a mental health condition that mitigates his misconduct. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted in the Regular Army on 25 October 2007; 2) The applicant served in Iraq from 15 May 2008-1 January 2009; 3) On 19 May 2009, the applicant accepted NJP from his battalion commander for the following UCMJ violations: A) disrespect toward an NCO; B) willfully disobeying an order; and C) wrongful use of marijuana; 4) On 22 May 2009, the applicant tested positive of marijuana again; 5) The applicant was found AWOL from 22-23 June 2009; 5) On 27 July 2009, the applicant's commander advised him that he was initiating separation action against the applicant. The commander stated he took this action because the applicant had abused illegal drugs twice (7 March and 7 April 2009); possessed 2.1 grams of marijuana on 22 May 2009; possessed a 40 caliber semiautomatic pistol on 22 May 2009; and was AWOL from 22- 23 June 2009; 6) On 21 August 2009, he was discharged with a Chapter 14-12c with an under other than honorable characterization of service; 6) On 10 June 2020, the ADRB voted to deny upgrading the applicant’s discharge, but they did revise his reason for separation. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and medical records. Th VA’s Joint Legacy Viewer (JLV) and the Armed Forces Health Longitudinal Technology Application (AHLTA) were also evaluated. d. The applicant asserts he was experiencing a mental health condition while on active service, and his misconduct should be mitigated because his mental health condition was a result of his combat exposure during his deployment to Iraq. The applicant was seen by behavioral health prior to his deployment to Iraq. On 24 February 2008, while the applicant was attending Advanced Individual Training (AIT), the applicant was seen for a command directed evaluation after he was on unit watch after attempting to go AWOL. He was described wanting to discontinue his service, and “not liking to be told what to do, having certain times for everything, and being away from home.” In addition, he was experiencing relationship difficulties with his fiancé. He also reported a history of trauma, depression, and ADHD prior to his enlistment. He denied any suicidal or homicidal ideation. The applicant was recommended to be taken off unit watch and was diagnosed with an adjustment disorder. After leaving AIT, he attended three sessions of stress management psychoeducation briefings prior and after his deployment to assist Soldiers with their deployment and returning home. e. On 09 April 2009, the applicant was again referred to behavioral health by his command for a risk assessment. The applicant was seen by an enlisted Behavioral Health tech, who was supervised by a licensed behavioral heath provider. The applicant was distressed over his perception that his command would not assist him to be compassionately reassigned closer to his wife, who could not leave her area due to a legal concern. He was not viewed as a risk to self or others, and he was again diagnosed with an adjustment disorder. He was seen for an initial evaluation by the Army Substance Abuse Program (ASAP) on 18 May 2009, but he was not diagnosed with a substance abuse disorder, and he did not report to any of his schedule appointments after his initial evaluation. The applicant was provided a Mental Status Exam as part of his separation processing on 02 June 2009. The applicant was diagnosed with adjustment disorder with depressed mood, and he was psychiatrically cleared for administrative action. However, while he was described as reporting depression, he denied experiencing the majority of symptoms of depression. He did report being “homesick and misses his family, which appears to be directing his behavior.” f. A review of JLV provided evidence the applicant was seen by a VA behavioral health provider while he was incarcerated on 14 December 2017 to provide him information in regards on services and resources available to him after his release. He did engage in behavioral health services after his release on 17 November 2022. He reported a history of substance abuse after leaving the Army. He also described mild depressive and anxiety symptoms and sub-clinical symptoms of a trauma disorder. He was diagnosed with depression, but the applicant has not engaged in treatment for his mental health conditions. He was awarded treatment for service-connected chronic adjustment disorder on 23 June 2022. g. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he was experiencing symptoms of a mental health condition that was the result of his deployment to Iraq that contributed to his misconduct. There is sufficient evidence the applicant was diagnosed with an adjustment disorder prior and after his deployment. In addition, he was diagnosed with service-connected chronic adjustment disorder. (2) Did the condition exist or experience occur during military service? Yes, there is evidence the applicant endorsed symptoms of an adjustment disorder while in active service. However, his condition was attributed to his difficulty to adapt to the military, relationship difficulties, and being “homesick.” The applicant’s mental health condition has consistently been attributed to his difficulty to adjust to living away from his family and his miliary duties and responsibilities. (3) Does the condition or experience actually excuse or mitigate the discharge? No, there is sufficient evidence that the applicant was experiencing difficulty adjusting the military life early and throughout his career. He was reported to be dissatisfied with military structure and was experiencing difficulty being away from family. He had a reported history of mental health concerns prior to his military service, and he continued to experience difficulties. The applicant had never been found to be a risk to himself or others, and his report of symptoms was consistently mild to moderate level of severity. There is insufficient evidence the applicant’s deployment to Iraq was the precipitating event for his mental health condition. He was engaged in avoidant behavior such as going AWOL, which can be a sequela to some mental health conditions. However, the applicant only went AWOL after he was experiencing the negative consequences of his misconduct. He also was engaged in substance use, but he was not diagnosed with a substance abuse disorder. It is likely the applicant was attempting to avoid his negative emotions with his substance use, but he did not actively engage in treatment despite attending an initial intake appointment and having scheduled follow-up appointments. In addition, there is no nexus between the applicant’s mental health condition and his possession of a semiautomatic weapon. However, the applicant contends he was experiencing a mental health condition and an experience that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration. 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 misconduct – serious offense. 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, 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. Title 10, United State Code, section 1556 (Ex Parte Communications Prohibited) 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. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Paragraph 3-7b (General Discharge). 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 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. Commanders were required to initiate separation action when they determined a Soldier had committed serious misconduct and could clearly establish rehabilitation was impracticable or unlikely to succeed. Paragraph 14-12c (Commission of a Serious Offense) applied to Soldiers who committed a serious military or civilian offense, for which the UCMJ authorized a punitive discharge for the same or similar offense. Per subparagraph (2), abuse of illegal drugs was deemed serious misconduct. 4. The Manual for Courts-Martial, United States, Appendix 12 (Maximum Punishments Chart), in effect at the time, showed punitive discharges as available maximum punishments for violations of UCMJ Article 112a (Wrongful Use, Possession, Manufacture, or Introduction of Controlled Substances). 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, 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. 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) AR20230001558 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1