IN THE CASE OF: BOARD DATE: 24 January 2024 DOCKET NUMBER: AR20230008064 APPLICANT REQUESTS: an upgrade to his general, under honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge) * Self-Authored Statement * Six Letters of Support * DD Form 214 (Certificate of Release or Discharge from Active Duty), 8 June 2017 * Department of Veterans Affairs (VA) Benefit Summary FACTS: 1. The applicant states he knows he made mistakes, but he is trying to be a better father to his daughter. He believes he would be a great asset working for the U.S. Government. He enlisted in the Army in hopes of sacrificing his life and freedom, but was denied the chance due to bad leadership. He believes he was treated unfairly in the service and is asking for a review of the facts. a. Additionally, he states that someone who has been given a commission of a serious offense is someone who has been charged and convicted of being absent without leave (AWOL), abuse of illegal drugs, or a sexual assault to which he has not. b. He believes his second nonjudicial punishment was him being falsely accused of a threat to which he was seeking mental health treatment, which he was denied. 2. The applicant provides six letters of support from friends and counselors summarizing his conduct, post-service behavior, and eagerness to continue his education. 3. The applicant also provides a benefit summary from the VA, showing that he was evaluated for post-traumatic stress disorder (PTSD) (depressive disorder). 4. A review of the applicant’s service records show: a. He enlisted in the Regular Army on 7 July 2015. He held military occupational specialty 13B, Cannon Crewmember. b. On 16 June 2016, he received nonjudicial punishment for discharging his weapon. His punishment consisted of extra duty and restriction for 14 days. c. On 16 August 2016, he received nonjudicial punishment for wrongfully provoking a noncommissioned officer. His punishment consisted of reduction to Private (E-1), forfeiture of $783.00 pay per month for 2 months (suspended), extra duty and restriction for 30 days. d. On 28 November 2016, he received nonjudicial punishment for violating a lawful general order for having a dog in his barracks room. His punishment consisted of extra duty for 8 days and an oral reprimand. e. On 4 May 2017, his immediate commander initiated action to separate the applicant for misconduct (Serious Offense). The reason for the proposed action was the applicant’s failure to obey a military protective order and negligently discharging his weapon. f. On 4 May 2017, the applicant acknowledged receipt of the action to separate him under the provisions of chapter 14-12c (Misconduct (Serious Offense)), Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), the basis for the action, and the rights available to him. g. After consulting with counsel, the applicant understood that he had less than 6 years of total active service and is not entitled to have his case heard by an administrative separation board. h. The applicant provided a personal statement to be included in the consideration of his separation action. He stated he appreciated the leadership appointed over him and was apologetic for his actions. He took full responsibility for his mistakes, but wanted to provide some factors and requested the separation authority suspend his separation for 12 months. i. On 23 May 2017, consistent with the chain of command recommendations, the separation authority directed the applicant be separated prior to the expiration of his term of service. He directed a general, under honorable conditions characterization of service. j. On 8 June 2017, he was discharged accordingly. His DD Form 214 shows he was discharged under the provisions of AR 635-200, chapter 14-12c for misconduct (Serious Offense). He completed 1 year, 11 months, and 2 days of active service and was awarded or authorized: * National Defense Service Medal * Global War on Terrorism Service Medal * Army Service Ribbon * Air Assault Badge k. On 9 August 2018, the Army Discharge Review Board (ADRB) reviewed the applicant’s request for a discharge upgrade. The ADRB, after careful review, determined he was properly and equitably discharged and denied his request. 5. By regulation, Soldiers are subject to separation under the provisions of chapter 14, AR 635-200 for misconduct (Serious 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. 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 such is merited by the Soldier’s overall record. 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. Background: The applicant is requesting that his Under Honorable Conditions discharge be upgraded to Honorable due to experiencing PTSD during his time in service. 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 Regular Army on 07 Jul 2015. His awards included the National Defense Service Medal, Global War on Terrorism Service Medal, Army Service Ribbon and Air Assault Badge. His military occupational specialty was Cannon Crewmember. * On 16 Jun 2016, applicant received nonjudicial punishment for discharging his weapon. * On 16 Aug 2016, applicant received an Article 15 for provoking an SSG, to include telling another NCO (SFC) about his urge to kill the SSG and “go to behavioral health” (01 Aug 2016). * On 28 Nov 2017, applicant was charged with violating a general order by “having a dog in his barracks room.” * Applicant’s commander initiated a separation action (04 May 2017) for misconduct (serious offense). This was based on, “failure to obey a military protective order and negligently discharging his weapon.” * The applicant’s separation packet is unavailable for review. However, the applicant’s service record includes her DD Form 214 (Report of Separation from Active Duty), which shows that the Army discharged the applicant “Under Honorable Conditions” (General) on 09 Jun 2017. c. 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), Personal Statement, his DD Form 214, as well as documents from his service record. The VA electronic medical record and DOD health record were reviewed through Joint Longitudinal View (JLV). d. This applicant asserted that PTSD was a mitigating factor in his discharge. He also contends his misconduct was due to the impact of his behavioral health condition. His service record and supporting documents included a personal statement. He noted, “Throughout my military career I was hazed by all my peers and my superiors. My career was destroyed due to bad leadership and poor understanding of my learning inabilities! I know with all the things I went through there are guidelines that could have been followed to help me and my mental health!” He received several support letters from peers or supervisors following his discharge. His commander who initiated his separation noted, “during his time under my Command as Cobra Battery 3-320th FA, I was pressed to discharge and chapter Keith under circumstances, while unfortunate, were valid and required a discharge. Keith endured the procedure with dignity and complied unlike his peers undergoing the same process and attempted to pressure him into resisting. He had proven his true character under pressure and ultimately showed courage despite knowing the outcome of this process. For this I recommend his discharge be changed to Honorable.” A Mental Status Evaluation (10 Apr 2016) indicated normal cognition, behavior and perception with no duty limitations. Based on this documentation, there is a lack of evidence the applicant was diagnosed or treated for mitigating condition(s) which occurred during his time in service. e. Per the applicant’s VA EHR, applicant is service connected at 100% for PTSD. A Department of Behavioral Health note, Fort Campbell (02 Aug 2016) indicated, “present on 8/2/16 as a walk-in and follow-up after being seen at the EC last night, with concerns for having a thought of homicide and suicide, and anger issues. SM reported being on a night fire range and had a thought to lock and load his weapon and shoot his gunnery sergeant because he had cursed and yelled at the SM. SM said the suicide thought was because it would hinder him from hurting someone else. SM stated that he would not act on any of the thoughts, and currently denied any HI/SI. SM reported that he is tired of being mistreated, not being accepted and have never been accepted by peers.” The psychologist diagnosed him, “Unspecified problems related to employment.” A BHIP Consult Report (29 Jun 2021) noted, “he states that he was hospitalized 3 times. He was first hospitalized for 1 week at age 17 for depression and alleged physical assault involving his cousin. His second hospitalization occurred while on active duty in 2016 following a domestic abuse incident…and the Army was banging on me for every little thing…His third and last hospitalization occurred in 2017 following separation from his wife at the time and having difficulty with the end of a relationship. He engaged in mental health therapy at the Cohen Clinic for 6 months on two separation occasions, in 2019 and 2020…He reported a history of plan to drown self in 2017; however, he denied a history of suicide attempts.” He was diagnosed with “Major Depressive Disorder, Recurrent, Mild to Moderate and Cannabis Use Disorder, Mild.” f. In summary, he is service connected at 100% for PTSD. Even though there are not any VA behavioral health notes (which are substantial) that identify PTSD as the primary diagnosis, under liberal consideration, applicant’s self-assertion of PTSD is sufficient to establish occurrence of PTSD. The service-connected disability for PTSD further solidifies the case that this condition significantly impacted applicant during his time in service. Consequently, after reviewing the application and all supporting documents, it is the opinion of this Agency Medical Advisor that there is sufficient evidence of a partially mitigating condition (PTSD) in concert with being bullied that contributed to his disregard of certain orders he took issue with. However, discharging his weapon in close proximity of other soldiers, accidental or otherwise, and verbal threats to kill an NCO are not associated with PTSD, and therefore cannot be mitigated. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge. Yes, he experienced PTSD symptoms and more likely than not bullying treatment contributing to his misconduct while still on active duty that was subsequently identified by VA with a 100% SC disability rating (JLV notes). (2) Did the condition exist or experienced occur during military service? Yes, there is evidence he initially experienced PTSD while on active duty per VA determination. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes, PTSD partially mitigates for his misconduct as PTSD and bullying treatment are often associated with disrespectful/disregarding behavior such as disobeying orders. However, discharging his weapon in close proximity of other soldiers, accidental or otherwise, and verbal threats to kill an NCO are not associated with PTSD, and therefore cannot be mitigated. 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. One potential outcome was to grant relief with an upgrade to honorable based on the punishment being harsh for the misconduct, his former commander’s endorsement for relief and concurrence with the medical review. However, upon review of the applicant’s petition, available military records and the medical review, the Board majority considered the advising official finding sufficient evidence of a partially mitigating condition (PTSD) in concert with being bullied that contributed to his disregard of certain orders he took issue with. However, discharging his weapon in close proximity of other soldiers, accidental or otherwise, and verbal threats to kill an NCO are not associated with PTSD, and therefore cannot be mitigated. 2. The Board determined there is insufficient evidence of in-service mitigating factors to overcome the misconduct of discharging his weapon in close proximity of other soldiers. The Board noted the post service accomplishments and numerous character letters of support that attested to your character, integrity, community service and the sacrifices in taking care of your family. The Board commends the applicant for his success and found taking full responsibility for his actions during his period of service as noteworthy. However, the Board notwithstanding the medical opine for partial mitigation, found the applicant was discharged for misconduct 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. Based on this, the Board denied relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :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. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) is a separation with honor. 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. b. Paragraph 3-7b (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 established policy and prescribed procedures for separating members for misconduct. The provisions encompassed the commission of a serious offense. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally considered appropriate for a Soldier discharged under this chapter. 2. 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. 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 (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 on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230008064 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1