IN THE CASE OF: BOARD DATE: 24 January 2024 DOCKET NUMBER: AR20230003693 APPLICANT REQUESTS: upgrade of his general, under honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * ACTS online application in lieu of DD Form 149 (Application for Correction of Military Record), 3 March 2023 * Self-authored Statement, undated * Table of Contents page * DD Form 214 (Certificate of Release or Discharge from Active Duty), 4 March 2008 * List of previous records of active-duty service * Veterans Administration Rating Decision, 21 January 2014 * Memorandum, Secretary of Defense, 3 September 2014, subject: Supplemental Guidance to Military Boards for Correction of Military Records Considering Discharge Upgrade Requests by Veterans Claiming Post-Traumatic Stress Disorder (PTSD) * Law Enforcement Firearms Instructor for Handgun and Shotgun Certificate, issued by (Organization), 23 October 2015 * Memorandum, Principal Deputy Under Secretary of Defense, 24 February 2016, subject: Consideration of Discharge Upgrades Pursuant to Supplemental Guidance to Military Boards for Correction of Military Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD or Traumatic Brain Injury (TBI) * Letter, (organization) 11 August 2016 * Memorandum, Office of the Under Secretary of Defense, 25 August 2017, Subject: (Clarifying Guidance to Military Discharge Review Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modifications of the Discharge Due to Mental Health Conditions, Military Sexual Trauma or Sexual Harassment * Letter, police background check, 14 February 2023 * Letter, (County) Florida, Criminal Court Background Check, 14 February 2023 * Email, 13 January 2023 (Special Award), Teacher and Coach of the year * Credit report, 2023 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 believes his discharge and characterization of service may be improper, inequitable or unjust due to the following listed reasons: (1) His command may have acted improperly by waiting a full 17 months from a single incident in 11/06 to initiate discharge procedures in 02/08. (2) May have been inequitable due to a later 100 percent (%) service-connected diagnosis for PTSD which was not available at the time of is discharge. (3) May have been improper due to command not conducting a PTSD evaluation by medical personnel prior to initiating his discharge from a 16-month combat deployment. (4) May have been in equitable due to new and updated Department of Defense Guidelines not previously in place prior to his discharge and characterization of service that now may have resulted in a different result, based on the Hagel, Carson, and Kurta Memorandums. (5) May have been improper and unjust due to arbitrary and capricious actions by his command. b. His father retired from the Army National Guard after serving 37 years on active duty. He was raised in a military family. He joined the Army National Guard after age 17. He attended basic training and was sent to Germany for his first overseas tour. c. He served in multiple distinguished units. His time in the Army was not what one would consider the normal progression. He has been both a noncommissioned officer and a commissioned officer. He resigned his commission in 1991 after going through a difficult divorce. d. In 2005, the conflicts in Iraq and Afghanistan were growing and he met with an Army recruiter. He reenlisted at 42 years old in the grade of E-5. e. He made his first deployment to a combat zone in November 2006, and he , arrived in Kuwait of that year. He signed out his personal military style baretta from the arms room and carried it with him on deployment. He received a company grade summarized nonjudicial punishment and was assigned to supervise extra duty detail of seven days. f. After several months of multiple air assault missions, he began the process of regaining his commission. He met with the chain of command and the process came to a quick end after at the squadron commander's desk. His view was that if he wanted to be an Army officer, have should not have resigned 10 years earlier. He requested a transfer to another unit, but his commander denied his request during the meeting. g. A few weeks later, after returning from another air assault mission, he was relieved. He had nonjudicial punishment placed in front of him, surrounding by counseling statements, and his extra weapon. He was not given time to consider any options. He asked why he was receiving this after already receiving a company punishment. His commander said the two were not exclusive. He felt it was a second punishment for the same issue and he requested a court-martial hearing. A week later he was informed by his sergeant there would be no hearing or any other UCMJ action. h. He was removed from all his platoon duties ,meetings, and restricted from missions. He was placed in charge of latrine cleaning detail for 2 months. He was removed from the tactical operations center entrance list. He was the only Soldier to have his mid-tour leave cancelled. He was moved to a separate living area for the Iraqi interpreters in a tent and stayed there for 4 months. He slept with a K-bar in his sleeping bag every night. i. The psychiatrist who diagnosed him said they knew where his issues may have begun. There were whispers that he had embarrassed him by requesting a court-martial hearing and it being denied by higher authority. After 4 months, he was transferred to 82nd Brigade Headquarters. After 5 months he was informed that a letter of reprimand was placed in his file and all five of his combat action badge nominations were denied due to a flag. j. A week before the end of his deployment, he was informed he would be attending a discharge board hearing. In a 2-1 vote he was given a general, under honorable conditions discharge. He was not made aware of the discharge characterization of misconduct (serious offense) until the day he signed out of the Army. k. He takes anxiety medication from the VA. It is hard for him to put his letter into words because of the difficulty and behavior that may have resulted in his PTSD issues while he was in Iraq. He does recognize that he struggled during times of his deployment. Not being able to leave that area for 16 months and 11 days straight and the living arrangements took a toll on him, and he still deals with the mental anguish to this day. l. The Board should consider upgrading his discharge and change the characterization of his service based on the Hagel, Carson, and Kurta memorandums. One minor incident should not derail 18 years of combined honorable service. 3. The applicant provided copies of: a. His application and statement outlined above. b. A listing of his previous honorable discharges. c. A VA Rating Decision, dated 21 January 2014, showing he was granted 100% disability rating compensation for PTSD. d. The Hagel, Carson, and Kurta memoranda, outlining liberal consideration policy for upgrading discharges by Boards for Correction of Military Records. e. A law enforcement training certification, dated 23 October 2015. f. An (organization) award showing he was recognized by Kentucky section for professional athletic achievement. g. A County police background check, dated 14 February 2023, showing no records of any incidents on file. h. A county court letter, dated 14 February 2023, showing no traffic, misdemeanor, or felony incidents. i. A teacher and coach of the year award from 2023. j. A credit report, dated 2023. 4. A review of the applicant's service records shows: a. He completed a prior period of enlisted service in the Regular Army during which he attained the grade/pay grade sergeant/E-5. He completed service as a commissioned officer in the Regular Army during which he attained the grade of 1st Lieutenant), resigned, and later was upgraded to honorable service. He completed service in the Florida Army National Guard (FLARNG). b. Following his service in the ARNG, he had broken time before he enlisted on 8 March 2006 in the Regular Army for 3 years and 12 weeks beginning at grade/pay grade sergeant/E-5. He attained the grade/pay grade staff sergeant/E-6. c. On 26 November 2006, he deployed to Iraq. d. On 6 December 2006, he was counseled: * for unprofessional behavior and disrespect to a noncommissioned officer on 2 December 2006 * for being 20 to 30 minutes late to an improvised explosive device and anti- fratricide class on 3 December 2006 * for failure to perform his duties as the Range Security Officer on 3 December 2006 * for violation General Orders by carrying his personal firearm during the deployment e. His records contain a memorandum, HQ, Task Force Falcon, Contingency Operation Base Speicher, dated 30 May 2007, subject: Commander's Inquiry Investigating Officer Appointment, showing the result of an investigating officer's (IO) report. This report shows an IO finding, dated 9 June 2007, in which the applicant: * undermined his immediate chain of command on many occasions in front of junior enlisted Soldiers through disrespect towards his superiors as well as misconduct during a court-martial for another Soldier by giving advice to a Soldier to avoid punishment * disrespected a commissioned officer on multiple occasions as well as a senior noncommissioned officer f. On 11 September 2007, he underwent a medical examination and gave a report of medical history. He indicated, in part, he had excessive worry and trouble sleeping and was using medication to sleep. The examining physician indicated he was qualified for service. g. On 13 September 2007, he underwent a mental status evaluation as requested by his command for the purpose of chapter proceedings. A MEDCOM Form 699-R shows the examining psychologist found he had normal behavior, was fully alert, and fully oriented. His mood/affect was unremarkable and thinking process was clear with normal though content and good memory. The examining psychologist noted he had the mental capacity to understand and participate in the proceedings, he was mentally responsible, and met the retention requirements of Chapter 3, Army Regulation 40-501. He was psychologically cleared for any administrative action deemed appropriate by the command. h. On 25 October 2007, his commanding officer notified him he was initiating action to separate him under provisions of paragraph 14-12c, section III, Army Regulation 635- 200 (Active Duty Enlisted Administrative Separations) for commission of a serious offense and notified him of his rights. The reasons for his proposed action were: On 1 December 2006 he violated MND_B General Order 1B by bringing his personal firearm with him to Kuwait. He displayed numerous examples of disrespect to senior noncommissioned officers and officers. He also undermined the command's authority in front of junior enlisted Soldiers. The applicant understood he had the right to consult with consulting counsel and/or civilian counsel; he could obtain copies of the documents that would be sent to the separation authority supporting the proposed separation; he may request a hearing before an administrative board or he may present written statements instead of board proceedings; he may request appointment of military counsel for representation ; he may waive his rights; he could submit a conditional waiver of his right to have his case heard by an administrative separation board; he was required to undergo a complete medical examination and undergo a mental status evaluation. i. On 25 October 2007, his commander recommended his separation prior to the expiration of his term of service for commission of a serious offense. j. On 16 November 2007, he and his counsel acknowledged receipt of his commander's notification memorandum in writing, and he elected his rights: He understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him. He further understood that, as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life. He understood that if he received a characterization of service, which was less than honorable, he may apply to the Army Discharge Review Board and then to the Army Board for Correction of Military Records for an upgrade; however, he realized that an act of consideration by either board would not imply that his discharge would be upgraded. k. In electing his rights, he met with counsel, and he waived his right to an administrative separation board contingent upon receiving a characterization of service no less than general, under honorable conditions. He further understood that if the separation authority refused to accept his conditional waiver of a hearing before an administrative separation board, that his case would be referred to an administrative separation board. l. In 21 November 2007, his intermediate commanders (Battalion and Brigade Commanders), recommended approval of his conditional waiver with a general, under honorable conditions characterization of service. m. In 26 November 2007, the applicant withdrew his conditional wavier and requested an administrative board hearing. n. On 1 December 2007, his Brigade commander accepted his request to withdraw his waiver of an administrative separation board, forwarded his request to the separation authority, and recommended his service be characterized as under other than honorable conditions. o. On 8 January 2008, he acknowledged receipt of notification for an administrative board hearing. p. On 25 January 2008, an administrative board met, the applicant appeared with counsel and he was afforded an opportunity to examine and object to the introduction of real and documentary evidence, including written statements; to object to the testimony of witnesses and to cross-examine witnesses other than his own; to call witnesses and otherwise introduce evidence; to testify as a witness; and to make or have his counsel make a final statement or argument. The Board recommended his separation from the Army with a general, under honorable characterization of service. The Board found: * the allegation of violating CENTCOM General Order Number 1 by wrongfully bringing a personal firearm into Kuwait was supported by a preponderance of the evidence * the allegation of disrespecting senior noncommissioned officers and commissioned officers on numerous occasions was supported by a preponderance of the evidence * the allegation of attempting to undermine the authority of the command with the junior enlisted Soldiers was not supported by a preponderance of the evidence * the findings did warrant separation with respect to misconduct p. On 6 February 2008, the separation approval authority approved the administrative separation board's findings and recommendation and directed his separation with service characterized as general, under honorable conditions. q. On 4 March 2008, he was discharged. His DD Form 214 shows he was discharged under provisions of Army Regulation 635-200, paragraph 14-12, section III, for commission of a serious offense with a general, under honorable conditions characterization of service. He completed 1 year, 11 months, and 27 days of net active service this period with 9 years, 5 months, and 13 days of prior active service. He served in Iraq during Operation Iraqi Freedom from 26 November 2006 to 11 February 2008. He was awarded or authorized: * Army Commendation Medal (Third Award) * Army Achievement Medal (Third Award) * Army Good Conduct Medal (Second Award) * National Defense Service Medal (Second Award) * Global War on Terrorism Service Medal * Iraq Campaign Medal * Noncommissioned Officer Professional Development Ribbon (Numeral 2) * Army Service Ribbon * Overseas Service Ribbon (Third Award) * Ranger Tab * Parachutist Badge * Air Assault Badge 5. There is no evidence showing he applied to the Army Discharge Review Board for an upgrade of his discharge for this period of service within that board's 15-year statute of limitations. 6. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 7. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his general, under honorable conditions discharge to honorable. He contends he experienced PTSD that mitigated 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 completed a prior period of enlisted service in the Regular Army. He completed service as a commissioned officer in the Regular Army during which he attained the grade of 1st Lieutenant, resigned, and later was upgraded to honorable service. He completed service in the Florida Army National Guard (FLARNG). Following his service in the ARNG, he had broken time before he enlisted on 8 March 2006 in the Regular Army for 3 years and 12 weeks beginning at grade/pay grade sergeant/E-5; 2) On 26 November 2006, he deployed to Iraq; 3) On 25 October 2007, his commanding officer notified him he was initiating action to separate him under provisions of paragraph 14-12c, section III, Army Regulation 635-200 for commission of a serious offense and notified him of his rights. The reasons for his proposed action were: On 1 December 2006 he violated General Order 1B by bringing his personal firearm with him to Kuwait. He displayed numerous examples of disrespect to senior noncommissioned officers and officers. He also undermined the command's authority in front of junior enlisted Soldiers; 4) On 4 March 2008, he was discharged, Chapter 14- 12, section III, for commission of a serious offense with a general, under honorable conditions characterization of service. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and available medical records. The VA’s Joint Legacy Viewer (JLV) was also examined. d. On his application, the applicant contends PTSD was contributing and mitigating factor in the circumstances that resulted in his separation. There is insufficient evidence the applicant reported or was diagnosed with any mental health condition while on active service. On 13 September 2007, he underwent a mental status evaluation as requested by his command for the purpose of chapter proceedings. The applicant was not diagnosed with a mental health condition and met the retention requirements of Chapter 3, Army Regulation 40-501. He was psychologically cleared for any administrative action deemed appropriate by the command. A review of JLV provided evidence the applicant has been diagnosed and treated for service-connected PTSD (currently 100%) since 2012. e. 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 PTSD that contributed to his misconduct. He has been diagnosed with service-connected PTSD by the VA since 2012. (2) Did the condition exist or experience occur during military service? Yes, the applicant contends he was experiencing PTSD while on active service that contributed to his misconduct. He has been diagnosed with service-connected PTSD by the VA since 2012. (3) Does the condition experience actually excuse or mitigate the discharge? No, there is sufficient evidence beyond self-report the applicant has been diagnosed with service-connected PTSD related to his deployment to Iraq. However, there is no nexus between PTSD and the applicant’s misconduct of bringing a personal weapon to Kuwait prior to moving into Iraq, disrespect to senior noncommissioned officers and officers, and undermining command's authority in front of junior enlisted Soldiers: 1) these types of misconduct are not part of the natural history or sequelae of PTSD; 2) PTSD does not affect one’s ability to distinguish right from wrong and act in accordance with the right. However, the applicant contends he was experiencing mental health condition or an experience that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration. 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 concurred with the advising official finding no nexus between PTSD and the applicant’s misconduct of bringing a personal weapon to Kuwait prior to moving into Iraq, disrespect to senior noncommissioned officers and officers, and undermining command's authority in front of junior enlisted Soldiers. The opine noted these types of misconduct are not part of the natural history or sequelae of PTSD; and PTSD does not affect one’s ability to distinguish right from wrong and act in accordance with the right." previous resignation of commission indicative of a pattern. 2. Furthermore, the Board determined there is insufficient evidence of in-service mitigating factors to overcome the misconduct. The Board noted, the applicant was discharged for misconduct and was provided an under honorable conditions (General) characterization of service. The Board found 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. Based on the preponderance of evidence, the Board denied relief. 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. Army Regulation 15-185 (Army Board for Correction of Military Records) 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. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets policies, standards, and procedures to ensure the readiness and-competency of the force while providing for the orderly administrative separation of soldiers for a variety of reasons. a. Paragraph 3-7a provides 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 provides 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, commission of a serious offense, and convictions by civil authorities. 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. d. Paragraph 14-12c provides guidance for Soldiers subject to action for commission of a serious offense. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts Martial. 4. Army Regulation 635-5-1 (Personnel Separations – Separation Program Designators), in effect at the time, listed the specific authorities, regulatory, statutory, or other directive, and reasons for separation from active duty, active duty for training, or full-time training duty. The separation program designator "JKQ" corresponded to "Misconduct (Serious Offense)," and the authority, Army Regulation 635-200, Chapter 14-12c. 5. On 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) 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. 6. The acting Under Secretary of Defense for Personnel and Readiness provided clarifying guidance on 25 August 2017, which expanded the 2014 Secretary of Defense memorandum, that directed the BCM/NRs and DRBs to give liberal consideration to veterans looking to upgrade their less-than-honorable discharges by expanding review of discharges involving diagnosed, undiagnosed, or misdiagnosed mental health conditions, including PTSD; traumatic brain injury; or who reported sexual assault or sexual harassment. 7. 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. 8. 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) AR20230003693 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1