IN THE CASE OF: BOARD DATE: 15 November 2023 DOCKET NUMBER: AR20230004978 APPLICANT REQUESTS: correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) by adding: * Certificate of Training, Basic Training * Certificate of Achievement * Certificate of Training, Petroleum Supply Specialist * Certificate of Affiliation, Quartermaster Corps * 2 x Certificates of Appreciation * NATO Medal * Upgrade of his Under other Than Honorable Conditions Discharge (UOTHC) APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Continuation of DD Form 149 * Self-Authored Letter * Memorandum, Subject: Separation Under Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) * Memorandum. Subject: Separation Under AR 635-200, Chapter 14, Paragraph 14-12b * Summary of Proceedings Administrative Separation Board * DD Form 214 * Medical Documents and Walk-in Psychiatric Evaluation * Department of Defense Directive (DoDD) 6490.1 (Mental Health Evaluations of Members of the Armed Forces) * Letter from Associate Program Director, Hematologic Malignancies and Cellular Therapy FACTS: 1. The applicant did not file within the 3-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 in his application and self-authored letter in effect: a. He earned all medals and certificates, during his military service and his records should reflect them. b. He looked at the summary of proceedings of his administrative separation board and found some of the facts were not looked at or taken into consideration when the board made their decision to discharge him with an UOTHC discharge. c. Staff Sergeant (SSG) - said to him from December 2000 through April 2001, which was less than five months and after he had already requested to be seen by mental health on several occasions. d. SSG - said he knew him for about 14 and a half months and there were a lot of problems with disrespect to Noncommissioned Officers (NCO) but in those 14 and a half months, he was promoted twice, once to private first class, under SSG -'s leadership. The board did not consider that while under SSG -'s leadership, he requested to be seen by mental health on more than one occasion, and the SSG, even after the threat, denied getting him help. The SSG did not personally want to see him get a medical discharge, which at the time was warranted. e. Sergeant (SGT) - said he knew him for 9 to 10 months and his duty performance was below standard. Yet he was promoted under the SGT's leadership and could not be rehabilitated because of his Article 15s. He had three Article 15s, up to that point. f. One SGT and SSG, who had known him the same amount of time as SGT -stated he was a good Soldier who had some problems, which could be fixed through rehabilitation. The majority of his issues occurred after his deployment to Kosovo and one of his commanders recommended, he receive an under honorable conditions (general) discharge. g. Because of these reasons, he believes he was given a retaliatory discharge instead of a discharge that reflected his mental health. He is requesting a discharge based on the mental illness that occurred, during his military service which he still suffers from. h. He was stationed in Vilseck, Germany. He wrote the letter to explain the circumstances that led to his UOTHC discharge and how he believes he was wrongfully discharged and how it has affected his life in the most negative way. i. After completing advanced individual training and arriving in Vilseck, Germany, everything was going well until he went to Kosovo and returned. He was punished for a number of things that drove him to making requests to seek mental health. He also made a subsequent perceived threat. j. He was 19 years old, when he deployed to Kosovo. This was his first time seeing the results of war and destruction. k. He was denied emergency leave, for no apparent reason, when his wife was going into labor with their first son. He was written up for being in [sic] regulation for his haircut which was being cut by two Soldiers who were in his company. He was made to wear his full battle gear everywhere on post for taking his Kevlar helmet off when he was feeling sick during field training. He was then publicly humiliated by having to run back and forth while reading the Army Core Values out loud when he had decided to stop wearing his full battle gear after a week and a half because depression had started to set in. That was the first time he asked to see mental health. l. He was physically assaulted by a group of Soldiers at an off-post club. He was laughed at by his first sergeant (1SG) because of his swollen face. m. As some type of retaliation by his 1SG, he was volunteered to go to a German Concentration Camp where his 1SG told him he was going to put him in one of the ovens, which he perceived as a threat. He put in a request to be transferred off that post and be relocated because his request for mental health had been denied twice. n. After qualifying on the range, which was a good day because it was the only time he felt relaxed and clear and he was able to do a very good job and was acknowledged for the job he had accomplished, SSG - tasked him to help other Soldiers qualify and to clean up the range, which by the SSG's own admission was one of the jobs for junior ranking Soldiers. o. During the conversation with the SSG, he stated he did not think he should go to the range because he was not feeling right and the SSG took that as a threat, and he was given a field grade Article 15 and initiation of separation was started without him seeing a mental health doctor. p. About a year and a half after his discharge, he sought to get help with his discharge because he started to have physical health problems along with being in and out of depression. When he explained he had an UOTHC discharge and the discharge came from a perceived threat, he would constantly get told there was nothing they could do for him. It was not until he was diagnosed with Non-Hodgkin's Lymphoma that he was finally told he had Post-Traumatic Stress Disorder (PTSD). He has lost almost everything and everybody because he never understood what his issues were and no one around him knew how to deal with it, which led him to seclude himself from the rest of the world. q. It was just like when he was in Vilseck, Germany when he was seeking help, but it was denied. He has been in the states and was getting denied by those whose job it was to help and that is the worst part. If they would have looked at the DoD guidelines on mental health, he would not have to write the letter because he would have gotten help almost 20 years ago. 3. The applicant's service record was void of, and the applicant did not provide, certificates of training, certificates of appreciation, or orders showing the awards he received. AR 15-185 (ABCMR) states the ABCMR will decide cases on the evidence of record. It is not an investigative body. Without evidence, the Board cannot make a determination regarding the applicant's request to add his certificates to his DD Form 214. Additionally, AR 635-5 (Separation Documents) in effect at the time does not provide a provision for the inclusion of certificates of appreciation or training on the DD Form 214. That portion of the applicant's request is not before the purview of the Board. The Board will make a determination regarding the applicant's request to upgrade his UOTHC discharge. 4. The applicant's service record contains the following documents for the Board's consideration: a. DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States) dated 15 July 1999 shows the applicant enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) for a period of 8 years. On 27 July 1999, he was discharged from the USAR DEP and entered active duty for a period of 4 years. b. Memorandum, Subject: Separation Under AR 635-200, Chapter 14, Paragraph 14-12b, dated 14 May 2001 notified the applicant of his commander's initiation of separation for several incidents of the applicant failing to be at his appointed place of duty, communication of a threat, several incidents of the applicant disobeying an NCO, failing to obey a lawful order, and for uttering worthless checks. The commander was recommending an UOTHC discharge. On 14 May 2001, the applicant acknowledged receipt of the initiation of separation. c. Memorandum, Subject: Separation Under AR 635-200, Chapter 14, Paragraph 14-12b, dated 23 May 2001, wherein the intermediate commander recommended the applicant receive an under honorable conditions (general) discharge. d. Memorandum, Subject: Separation Under AR 635-200, Chapter 14, Paragraph 14-12b, dated 4 June 2001, wherein the senior commander recommended the applicant receive an UOTHC discharge. e. Memorandum, Subject: Separation Under AR 635-200, Chapter 14, Paragraph 14-12b, dated 13 June 2001, wherein the separation authority referred the applicant's case to an administrative separation board. f. Memorandum, Subject: Notification to Appear before a Board of Officers, dated 3 July 2001 notified the applicant of the separation board hearing. On 5 July 2001, the applicant acknowledged receipt of the notification. The applicant received a second memorandum notifying him of his separation board on 25 July 2001 and acknowledged receipt of the second notification on 27 July 2001. g. DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) shows on 14 August 2001, an administrative separation board convened regarding the applicant's separation. The board found that the allegations of a pattern of misconduct was supported by a preponderance of the evidence and recommended the applicant be separated from the Army with an UOTHC discharge. Page 2 of the form indicates the applicant was represented by counsel (Captain -) and she was present at all open sessions. The entire summary of proceedings is available for the Board's consideration. h. Memorandum, Subject: Separation Under AR 635-200, 14-12c [sic], dated 5 September 2001 directed the applicant's separation from the Army with an UOTHC discharge. i. DD Form 214, for the period ending 10 September 2001, shows the applicant was discharged with an UOTHC characterization of service, for misconduct. He received a JKA separation Code and a Reentry Code of 3 and he had no days lost. He completed 2 years, 1 month, and 14 days of net active duty service. He was awarded or authorized the Army Service Ribbon. The DD Form 214, nor his service record, indicated the applicant deployed to Kosovo. 5. The applicant provides the following documents, not previously considered, for the Board's consideration: a. Medical documents dated 21 December 2020, which shows the applicant had general anxiety disorder and was being seen for a psycho-oncology pre-transplant evaluation. Further diagnosis shows depression, major, recurrent, moderate and adjustment disorder with anxious mood. He highlights on page 7 "the patient exhibits a medium degree of social stability (job instability likely due to PTSD, other life arenas stable)." b. Walk-in psychiatric evaluation, dated 27 July 2022, shows the applicant had a walk-in psychiatric evaluation, lists the medications the applicant was taking, and shows the assessment as major depressive disorder, generalized anxiety disorder, PTSD, and cannabis abuse. c. DoDD Number 6490.1 dated 1 October 1997, which updated policy and assigned responsibilities for referral, evaluation, and management of service members directed for mental health evaluations. It included: protection of rights of service members; prohibited the use of referrals by commanding officers for mental health evaluations in reprisal; required commanding officers be alert to potentially dangerous servicemembers; and established standards for mental healthcare providers to carefully assess risk for, and to take actions to prevent, dangerous behavior. The entire directive is available for the Board's consideration. d. Letter from the Associate Program Director of Ochsner Health, dated 24 August 2022, which stated the applicant had been receiving treatment for a form of Non-Hodgkin's lymphoma, which is a severe form of cancer that could be life threatening. With chemotherapy and an autologous stem cell transplant, the applicant was in complete remission. The applicant had worked as a petroleum supply specialist in the Army and was exposed to benzene. His exposure history was a significant risk factor for developing this cancer. To the best of the doctor's ability to infer a cause of the applicant's cancer, the doctor believed it was more likely than not due to the applicant's benzene exposure, while in the military, contributed to his development of Non- Hodgkin's lymphoma. Were the applicant not exposed, in the doctor's opinion, it was much less likely he would have been affected by this disease. 5. MEDICAL REVIEW: a. Request: The applicant is requesting a correction of his DD Form 214 and an upgrade of his Under Other Than Honorable Conditions discharge (UOTHC). The applicant contends PTSD mitigates his discharge. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a brief summary of information pertinent to this advisory: * The applicant enlisted in the Regular Army on 27 July 1999. * On 14 May 2001, the applicant was notified of his commander's initiation of separation under AR 635-200, Chapter 14, Paragraph 14-12b, for several incidents of failing to be at his appointed place of duty, communication of a threat, several incidents of the applicant disobeying an NCO, failing to obey a lawful order, and for uttering worthless checks. The commander was recommending an UOTHC discharge. * On 14 August 2001, an administrative separation board convened regarding the applicant's separation. The board found the allegations of a pattern of misconduct was supported by a preponderance of the evidence and recommended the applicant be separated from the Army with an UOTHC discharge. * DD Form 214, for the period ending 10 September 2001, shows the applicant was discharged with an UOTHC characterization of service, for misconduct. He received a JKA separation Code and a Reentry Code of 3. The DD Form 214, nor his service record, indicated the applicant deployed to Kosovo. 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, ABCMR Record of Proceedings (ROP), self-authored statement, summary of proceedings of administrative separation board, and medical documentation. The VA electronic medical record and DoD health record available for review through Joint Longitudinal View (JLV). Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. The applicant reports his difficulties started after his deployment to Kosovo. However, his deployment to Kosovo cannot be corroborated by his service record. Per the applicant, while stationed in Germany, he was denied emergency leave for no apparent reason when his wife was going into labor with their first son. He also described other incidents of perceived harassment. He reports experiencing a depressive episode at that time and requested mental health services. Per the applicant, he was discharged in a retaliatory manner rather than provided a discharge that reflected his mental health issues. The applicant further reports after his discharge, he sought help upgrading the characterization of his discharge because he started experiencing physical health problems along with depression. However, when he explained he had an UOTHC discharge and the discharge came from a perceived threat, he would constantly get told there was nothing they could do for him. It was not until he was diagnosed with Non-Hodgkin's Lymphoma that he was finally told he had Post-Traumatic Stress Disorder (PTSD). He has lost almost everything and everybody because he never understood what his issues were and no one around him knew how to deal with it, which led him to seclude himself from the rest of the world. e. No electronic medical records were available from his time in service. However, the applicant submitted a summary of proceedings of his administrative separation board in which he describes issues with depression, defends his position that his request to be excused from the range was based on apparent safety concerns and was not a threat, and clearly articulates his need for mental health services. The applicant was apparently seen by the chaplain for support. The applicant’s statement during the proceeding were as follows: “We were supposed to go to the range that day. I told the NCOs that I didn't think it was a good idea, as I was missing my family and having a lot of problems with it. I was really depressed and frustrated and didn't think having a weapon with live ammunition would be a good idea. I have a wife and two kids back in the states. It had been a long time apart, and I was having problems dealing with it. I told them that I didn't mean my comments as a threat, and they seemed to understand that at the time. I have seen the chaplain a couple of times. I have asked the chain of command three times for help with counseling, but never got me any help.” f. The applicant is not service connected and there are no VA electronic medical records available for review, likely due to the characterization of his discharge. However, the applicant submitted medical documentation for review, including a thorough diagnostic Psycho-Oncology Pre-Transplant Evaluation, dated 21 December 2020, that diagnosed him with Major Depressive Disorder, recurrent, and adjustment disorder with anxious mood. The evaluator notes chronic depression since military experience and the report reflects the use of objective screening measures. In an evaluation, dated 27 July 2022, the applicant was diagnosed with Major Depressive Disorder, recurrent, Generalized Anxiety Disorder, Post traumatic Stress Disorder (PTSD), and Cannabis abuse, uncomplicated. However, this evaluation was based solely on the applicant’s self-report. g. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is sufficient evidence the applicant had a behavioral health condition during military service that would partially mitigate his discharge. 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 contends a mitigating condition. (2) Did the condition exist or experience occur during military service? Yes. There is evidence the applicant requested mental health services during his time in service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The applicant was separated from military service for several incidents of failing to be at his appointed place of duty, communication of a threat, several incidents of the applicant disobeying an NCO, failing to obey a lawful order, and for uttering worthless checks. Medical documentation provided by the applicant shows he has been diagnosed with Major Depressive Disorder, recurrent, Adjustment Disorder with anxious mood, Generalized Anxiety Disorder, Posttraumatic Stress Disorder (PTSD), and Cannabis abuse, uncomplicated. The applicant explained in the summary of proceedings of his administrative separation board that his communication of a threat was not intended as a threat but was based on his concern that having a weapon with live ammunition would be a safety concern given his depression. The applicant was correct in asserting his concern, since removal of weapons and limiting access is the intervention of choice based on best clinical practice. Based on the available information, the applicant’s communication of a threat is mitigated by his depression. The applicant’s incidents of failing to be at his appointed place of duty are also mitigated by his BH condition since there is a nexus between depression/anxiety/PTSD and avoidance. In addition, given the nexus between depression/anxiety/PTSD and difficulty with authority, his incidents of the applicant disobeying an NCO and failing to obey a lawful order are mitigated by his BH conditions. However, his uttering worthless checks is not mitigated by any of his BH condition, since none of his conditions interfere with the ability to understand right from wrong and act in accordance with the right. 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, considered the advising official partial findings that there is a nexus between depression/anxiety/PTSD and avoidance. In addition, given the nexus between depression/anxiety/PTSD and difficulty with authority, his incidents of the applicant disobeying an NCO and failing to obey a lawful order are mitigated by his BH conditions. 2. However, the Board notwithstanding the medical partially mitigated opine determined there is insufficient evidence in-service mitigating factors to overcome the misconduct based on the applicant’s numerous patterns of misconduct of failing to be at his appointed place of duty, communication of a threat, several incidents of the applicant disobeying an NCO, failing to obey a lawful order, and for uttering worthless checks. The Board determined there is no evidence the applicant could not distinguish between right and wrong. 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. Therefore, relief was denied. ? 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. Army Regulation (AR) 635-5 (Separation Documents) in effect at the time, prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty, or control of the Active Army. It establishes standardized policy for preparing and distributing the DD Form 214. It states: a. Block 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) list awards and decorations for all periods of service. Each entry will be verified by the Soldier's records. b. Block 14 (Military Education) list formal in-service training courses successfully completed during the period of service covered by the DD Form 214. This information is to assist the Soldier in job placement and counseling, therefore, do not list training courses for combat skills. 3. AR 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, prescribed the policy for enlisted separations. a. An honorable discharge is a separation with honor and entitles a Soldier to full Federal rights and benefits provided by law. The honorable characterization is appropriate when the quality of the Soldier'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. Paragraph 3- 6, states "Both honorable and general discharges entitle a Soldier to full benefits provided by the law." Discharge under other than honorable conditions may or may not deprived the Soldier of veteran's benefits administered by the Department of Veterans Affairs. 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 of the regulation dealt with separation for various types of misconduct. The issuance of a discharge under other than honorable conditions (UOTHC) was normally considered appropriate for separations under the provisions of chapter 14. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service, he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. Paragraph 14-12b provided for the separation of a Soldier due patterns of misconduct. 4. 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 (TBI); sexual assault; or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted 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) AR20230004978 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1