IN THE CASE OF: BOARD DATE: 13 December 2023 DOCKET NUMBER: AR20230005844 APPLICANT REQUESTS: * an upgrade of his general, under honorable conditions discharge to an honorable discharge * a personal appearance before the Board via video/telephone APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). 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 he served his country and would like to be recognized as a veteran. He marked post-traumatic stress disorder (PTSD) on his DD Form 149 as an issue and condition related to his request for upgrade of his discharge. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 26 June 2002 for 3 years beginning at grade/pay grade private 2/E-2. b. DA Form 705 (Army Physical Fitness Test (APFT) Scorecard) shows he failed the APFT on the following dates: * 26 April 2003 * 3 May 2003 * 27 June 2003 * 15 August 2003 * 7 October 2003 c. On 27 April 2003, the applicant received a notification of potential separation from his first sergeant, which stated if his substandard conduct continued, action may be initiated to separate him from the Army under Army Regulation (AR) 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations). d. On 12 September 2003, he received a counseling for APFT failure. He was enrolled in the Special Population Physical Training Program until his next APFT. It stated he may take the APFT when he felt he was ready or when the command felt he was ready, not to exceed 90 days. A flag was initiated, and he was informed that if he failed more than two record APFT he may be subject to being discharged out of the Army under the applicable regulations. e. On 14 October 2003, he received counseling to discuss his failure to achieve a passing score on the APFT. Possible methods to correct his substandard performance and the possible repercussions of consecutive record APFT failures were discussed during the counseling session. He was informed that he had three months to retake and pass the APFT, and if he failed two consecutive record APFT he may be separated from the military. f. The applicant underwent a medical examination on 20 October 2003. The applicant marked 'yes' to shortness of breath, severe tooth or gum trouble, ear/nose/throat trouble, knee trouble, currently in good health, and receiving counseling of any type. g. The applicant underwent a mental status evaluation on 21 October 2003 for the purpose of separation. The clinical psychologist noted there was no evidence of any mental disease or defect which would warrant a disposition through medical/psychiatric channels. The applicant did not report any suicidal or homicidal thoughts at the time. He cleared the applicant for any administrative action deemed appropriate by the command. h. On 9 January 2004, the applicant’s immediate commander notified him of his intent to initiate separation actions against him under the provisions AR 635-200, chapter 13, by reason of unsatisfactory performance, and advised the applicant of his rights. The commander listed the following reason for the proposed separation: he failed five consecutive record Army Physical Fitness Tests on 26 April 2003, 3 May 2003, 27 June 2003, 15 August 2003, and 7 October 2003. i. On 9 January 2004, the applicant acknowledged notification of the proposed separation under the provisions of AR 635-200, chapter 13, and its effects; of the rights available to him; and the effect of any action he took in waiving his rights. He understood that if he had less than 6 years of total active and Reserve military service at the time of separation and was being considered for separation under AR 635-200, chapter 13, he was not entitled to have his case heard by an administrative separation board unless he was being considered for a discharge under other than honorable conditions. 1) He waived military consulting counsel and elected not to submit statements on his own behalf. 2) He understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He further understood that, if he received a discharge certificate/character of service which was less than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws. 3) He understood that he could submit an application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however, an act of consideration by either Board did not imply that the discharge would be upgraded. 4) He understood that he may, up until the date the discharge authority directs or approves his discharge, withdraw his waiver of any of his rights. j. On 9 January 2004, the applicant’s immediate commander-initiated separation under the provisions of AR 635-200, chapter 13. The commander recommended the applicant receive an under honorable conditions (general) characterization of service. He noted the applicant clearly had no potential for useful service under conditions of full mobilization and requested that the rehabilitative requirements of AR 635-200 be waived. k. On 12 January 2004, the intermediate commander recommended approval of the separation under the provisions of AR 635-200, chapter 13, under honorable (general) conditions and that he is not transferred to the Individual Ready Reserve (IRR). l. On 13 January 2024, the separation authority approved the discharge and directed the applicant be issued an under honorable conditions (general) discharge and not be transferred to the IRR. He waived the rehabilitative requirements of AR 635-200. m. The applicant was discharged on 23 January 2004. His DD Form 214 shows he was discharged under the provisions of AR 635-200, chapter 13, for unsatisfactory performance, in the rank/grade of private (PV2/E-2), and his service was characterized as under honorable conditions. He completed 1 year, 6 months, and 28 days of net active service during the covered period. This form also shows in: * item 12f (Foreign Service): 3 months, 7 days * item 13 (Decorations, Medals, Citations and Campaign Ribbons Awarded or Authorized): National Defense Service Medal, Army Service Ribbon, and the Sharpshooter Marksmanship Qualification Badge with rifle bar * item 18 (Remarks): Service in Southwest Asia from 19 February 2003 to 25 May 2003 and member has not completed first full term of service 4. The pertinent Army regulation in effect at the time provided discharges under the provision of AR 635-200, chapter 13, who are separated because of unsatisfactory performance would be characterized as honorable or under honorable conditions as warranted by their military record. 5. By regulation (AR 15-185), applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 6. There is no indication the applicant applied to the Army Discharge Review Board for review of his discharge processing within that Board’s 15-year statute of limitations. 7. In reaching its determination, the Board can consider the applicant’s petition and her service record in accordance with the published equity, injustice, or clemency determination guidance. 8. MEDICAL REVIEW: a. Background: The applicant is requesting a review of his discharge and recognition as a veteran. 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 on 26 Jan 2002, having been in the Delayed Entry Program since 08 Aug 2001. * On 15 Aug 2003 and 07 Oct 2003, he failed the APFT tests. He failed three other APFT tests during his time on active duty as well. * A Mental Status Examination (21 Oct 2003) did not identify any behavioral health concerns and consequently he was cleared for any administrative actions. * Applicant was recommended for administrative separation from the Army (09 Jan 2004) for the failed APFT tests. * The applicant’s separation packet is available for review. The applicant’s service record includes his DD Form 214 (Report of Separation from Active Duty). This document indicated the Army discharged the applicant (23 Jan 2004) “Under Honorable Conditions” (General) as a result of Unsatisfactory Performance. c. The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed includes the applicant’s completed Application for Correction of Military Record (DD Form 149), his ABCMR Record of Proceedings (ROP), his DD Form 214 and service packet, as well as documents from his service record. There was not a VA Form 21-4138 (Statement in Support of Claim) included in the documents provided for review. The VA electronic medical record and DOD health record were reviewed through Joint Longitudinal View (JLV). d. This applicant did not submit a VA Statement in Support of Claim document. There was a lack of identified behavioral health conditions in his application to suggest any mitigating factors in his discharge. His service record and supporting documents solely provided a “mental status examination,” as the totality of his service treatment records. No other medical or behavioral health records were provided. There is insufficient evidence that the applicant was ever diagnosed or treated for a potentially mitigating behavioral health condition while on active duty. e. Per the applicant’s VA EHR, he is not service connected for any medical or behavioral health conditions. There was an absence of any behavioral health related notes in JLV other than the Mental Status Examination (noted above) during his time in service. f. After reviewing the application and all supporting documents, this Agency Medical Advisor cannot provide an opine regarding potentially mitigating behavioral health conditions or experiences contributing to his “unsatisfactory performance” discharge without documentation of specific behavioral health conditions. There was simply no documentation available for this review to lend support that the applicant had any behavioral health conditions during his time in service. No discharge upgrades are recommended at this time. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge. No, there was not any available documentation indicating the presence of behavioral health condition(s) during his time in service. (2) Did the condition exist or experience occur during military service? There was not any evidence of any behavioral health condition(s) during his time in service. (3) Does the condition or experience actually excuse or mitigate the discharge? No, since no behavioral health conditions were documented from his time in service. 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 documentation available for this review to lend support that the applicant had any behavioral health conditions during his time in service. The Board found insufficient evidence of in-service mitigating factors to overcome the misconduct. The Board noted, the applicant provided insufficient evidence of post-service honorable conduct that might have mitigated the discharge characterization. 2. The Board noted the applicant completed 1 year, 6 months, and 28 days of net active service during the covered period, of which he had 3 months 7 days of foreign service. The Board determined the applicant was discharged for unsatisfactory performance and was provided an under honorable conditions (General) characterization of service. The Board agreed that 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. Therefore, the Board denied relief. 3. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING xx xx xx 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 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. A general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 13 provided that commanders would separate a member for unsatisfactory performance when it is clearly established that: (1) In the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. (2) The seriousness of the circumstances is such that the member's retention would have an adverse impact on military discipline, good order, and morale. (3) It is likely that the member will be a disruptive influence in duty assignments. (4) It is likely that the circumstances forming the basis for initiation of separation proceedings will continue or recur. (5) The ability of the Soldier to perform duties effectively in the future, including potential for advancement or leadership, is unlikely. (6) Initiation of separation proceedings is required for soldiers without medical limitations who have two consecutive failures of the Army Physical Fitness Test per Army Regulation 350-41. 3. 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; TBI; sexual assault; sexual harassment. Boards were directed 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 that misconduct which led to the discharge. 4. 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 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 on equity or relief from injustice. This guidance does not mandate relief but provides standards and principles to guide Boards in application of their equitable relief authority. a. 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. 5. 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. 6. 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 ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230005844 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1