IN THE CASE OF: BOARD DATE: 19 October 2023 DOCKET NUMBER: AR20230002773 APPLICANT REQUESTS: upgrade of his under honorable conditions (general) discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENT CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three-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 completed a full term of service prior to reenlisting and did not have any problems until his second period of enlistment. At the time of his misconduct, he was suffering from post-traumatic stress disorder (PTSD) following his return from deployment to Iraq. 3. The applicant enlisted in the Army Reserve Delayed Entry/Enlistment Program (DEP) on 5 January 2001 with a projected enlistment date in the Regular Army. He enlisted in the Regular Army on 18 January 2001, for a period of 3 years. Upon completion of initial entry training, he was assigned to a unit at Fort Campbell, KY. 4. On 24 July 2001, the applicant's unit changed his duty status as Assigned Not Joined to Absent Without Leave. On 23 August 2001, his status was changed to Dropped from Rolls (DFR) and he was reported to law enforcement agencies as a deserter. 5. On 18 November 2002, the applicant was apprehended by civil authorities and returned to military control. 6. The applicant served in Iraq from 1 March 2003 until 14 February 2004. 7. The applicant was promoted to the rank/grade of specialist (SPC)/E-4 effective 24 May 2004. 8. On 20 July 2004, the applicant reenlisted for a period of 3 years, in the grade of E-4. 9. On 15 November 2005, the applicant was counseled regarding his violation of the Army Drug Substance Abuse Program after a urine sample he provided on 12 September 2005 tested positive for cocaine. He was advised he would be recommended for punishment. He was further advised that continued behavior of this nature could result in separation from the Army with a less than honorable characterization of service and the potential impact of such a separation. 10. On 15 November 2005, the applicant was command referred for enrollment in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP). It was noted that he was pending murder charges and the trial was scheduled for May 2006. 11. On 17 November 2005, an administrative flag was imposed on the applicant due to pending elimination. 12. On 30 November 2005, the applicant underwent a mental status evaluation. The examining mental health professionals determined he was mentally responsible for his behavior and possessed sufficient mental capacity to understand and participate in the proceedings. He was psychiatrically cleared for any administrative action deemed appropriate by command. 13. The applicant underwent a pre-separation medical examination, and he was determined to be medically qualified for retention and/or administrative separation. 14. On 12 December 2005, the applicant accepted field grade nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully using cocaine between on or about 9 September 2005 and on or about 12 September 2005. His punishment consisted of reduction from SPC/E-4 to private first class (PFC)/E-3; extra duty for 45 days; and restriction for 45 days. 15. On 6 March 2006, the applicant's chain of command was informed that drug testing laboratory results of a urine sample he provided on 22 February 2006 tested positive for cocaine. 16. The applicant's immediate commander notified the applicant on 9 March 2006 of his intent to initiate actions to separate him under the provisions of Army Regulation 635- 200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for commission of a serious offense. The specific reasons cited were the applicant's positive drug test results for the use of cocaine for urine samples provided on 12 September 2005 and 22 February 2006. He was advised that he was being recommended for a general discharge. 17. The applicant acknowledged receipt of the proposed separation notification on 9 March 2006. He was advised of the reasons for separation and of the rights available to him. He consulted with counsel and elected not to submit a statement in his own behalf. 18. On 9 March 2006, the applicant's immediate commander formally recommended his separation prior to the expiration of his term of service under the provisions of Army Regulation 635-200, Chapter 14, by reason of commission of a serious offense-abuse of illegal drugs. 19. On 7 April 2006, the separation authority approved the recommended separation and directed the applicant be issued a general, under honorable conditions discharge. 20. Orders and the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) show he was discharged on 13 April 2006, under the provisions of Army Regulation 635-200, paragraph 14-12c(2), by reason of misconduct (Drug Abuse), with separation code "JKK" and reentry eligibility code "3." His service was characterized as Under Honorable Conditions (General). His period in the DEP was from 5 January 2001 until 11 June 2001. He had immediate reenlistments this period from 12 June 2001 until 19 July 2004 and from 20 July 2004 until 13 April 2006. He was credited with 4 years, 10 months, and 2 days of net active service this period. He was not credited with any prior inactive service. He did complete his first full term of service. He was awarded or authorized the: * Army Achievement Medal * Army Good Conduct Medal * National Defense Service Medal * Global War on Terrorism Service Medal * Iraq Campaign Medal 21. On 31 March 2023, an agency staff member requested the applicant provide medical documentation in support of his claims of PTSD. He was afforded a period of 30 days to respond. To date, he has not responded. 22. 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. 23. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his general, under honorable conditions discharge to an honorable discharge. 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 18 January 2001. * On 24 July 2001, the applicant's unit changed his duty status as Assigned Not Joined to Absent Without Leave. On 23 August 2001, his status was changed to Dropped from Rolls (DFR) and he was reported to law enforcement agencies as a deserter. On 18 November 2002, the applicant was apprehended by civil authorities and returned to military control. * The applicant served in Iraq from 1 March 2003 until 14 February 2004. * On 20 July 2004, the applicant reenlisted for a period of 3 years, in the grade of E-4. * On 15 November 2005 he was counseled on testing positive for Cocaine on 12 September 2005. He was command referred for enrollment in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP). It was noted that he was pending murder charges and the trial was scheduled for May 2006. * On 12 December 2005, the applicant accepted field grade nonjudicial punishment (NJP) for wrongfully using cocaine between on or about 9 September 2005 and on or about 12 September 2005. * On 6 March 2006, the applicant's chain of command was informed that drug testing laboratory results of a urine sample he provided on 22 February 2006, tested positive for cocaine. * The applicant's immediate commander notified the applicant on 9 March 2006 of his intent to initiate actions to separate him under AR 635-200, paragraph 14- 12c, for commission of a serious offense. The specific reasons cited were the applicant's positive drug test results for the use of cocaine for urine samples provided on 12 September 2005 and 22 February 2006. The separation was approved. * The applicant was discharged on 13 April 2006, with a 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, as well as documents from his service record and separation. 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 was suffering from PTSD when he returned from Iraq. He also highlighted that his first term of service was honorable, with no problems and that concerns started after his deployment. His records show, however, that he went AWOL during his first period of service and was only returned to military control after being apprehended. e. The applicant’s time in service predates consistent use of electronic health records (EHR) by the Army. There was a single mental health encounter reflecting the mental status exam (MSE). 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 ADAPCP enrollment document, his separation MSE as well as his separation physical. His ADAPCP enrollment assessment results, dated 16 November 2005, show the applicant denied all criteria for abuse and dependence, and the assessor concurred with command that the applicant should participate in education. He was seen for an MSE on 30 November 2005. The applicant was found to have the mental capacity to understand and participate in the proceedings, was mentally responsible, and was psychiatrically cleared for any administrative action deemed appropriate by command. He completed his separation medical examination on 6 December 2005. His Report of Medical History shows that he reported numerous physical health concerns, as well as issues that could relate back to mental health such as pain or pressure in his chest and heart palpitations or abnormal heartbeat. In addition, he reported problems with sleep and depression or excessive worry (“sadness”). The provider followed up by noting that his depression and anxiety are self- diagnosed, that he was evaluated by the chaplain and had a follow up visit scheduled. In addition, the provider noted he was having problems at work and family, was in the process of getting a divorce, had recent jail time and was having difficulty falling asleep. His profile on 15 December 2005 showed all 1s. No other records were provided. There was no record of a diagnosis of PTSD while he was in the service. f. Per the applicant’s EHR, he is 100% service connected for PTSD. The applicant has been engaged in care at the VA since 2006, and mental health care since 2013. He has been diagnosed with PTSD, alcohol abuse, anxiety state, as well as other psychosocial diagnoses such as legal problems and personal history of traumatic brain injury. The applicant was seen for a compensation and pension (C&P), PTSD DBQ exam on 28 October 2013, with this one noting his first was in October of 2006. He was diagnosed with PTSD during each. Per his VA records, he was first diagnosed with PTSD while in prison (was in prison for unintentional death of 8 month old daughter – PTSD symptoms were reportedly out of control and he shook her trying to get her to stop crying; possession of drugs; grand theft auto). His trauma symptoms relate back to combat related incidents (IEDs, seeing his friend get killed, and firefights). He has engaged in therapy and medication management. Through review of JLV, this applicant did have “Community Health Summaries and Documents” available, though minimal data was available, and no indication of a mental health disorder was present. 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 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? Yes. There is evidence the applicant was struggling with sleep, depression and anxiety and that he experienced significant traumatic events during his deployment, though he was not diagnosed or treated for PTSD during his time in service. However, he has since been service connected at 100% for PTSD. Hence, per liberal consideration guidance, his contention is worthy of the board’s consideration. Avoidance and self-medicating behaviors, such as substance use, are consistent with natural history and sequalae of PTSD. There is a nexus between PTSD and this misconduct which led to his discharge. h. His service record mentioned that he was also scheduled to be tried for murder in the civilian courts. There is no mention of this situation impacting his discharge, nor factoring into the decision. Hence, it is not likely required to be opined. Of note though, there is no nexus between PTSD and murder. BOARD DISCUSSION: The Board carefully considered the applicant's request, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service to include deployment, the frequency and nature of his misconduct and the reason for his separation. The Board considered the applicant's PTSD claim and the review and conclusions of the ARBA BH Advisor. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board found insufficient evidence of in-service mitigating factors and, while concurring with the conclusion of the medical advising official regarding his misconduct being mitigated by PTSD, noted that the applicant was given an under honorable conditions (general) character of service instead of the harsher characterization of under other than honorable conditions that was also authorized. The Board found this decision to be appropriate based on the evidence in this case. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. The Board concurred with the correction described in Administrative Note(s) below. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by making the corrections described in Administrative Note(s) below. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the character of service. 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. ADMINISTRATIVE NOTES The applicant’s DD Form 214 is missing a required entry related to his reenlistment. Amend item 18 of the DD Form 214 by adding "CONTINUOUS HONORABLE SERVICE FROM 20010612 TO 20040719." REFERENCES: 1. Title 10, USC, Section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, USC, Section 1556, provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency (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 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 applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. Paragraph 3-7b states 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 merited by the Soldier’s overall record. 5. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Navy Records (BCM/NR) to carefully consider the revised post-traumatic stress disorder (PTSD) criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions (UOTHC) 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. 6. 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. 7. 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) AR20230002773 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1