IN THE CASE OF:  
BOARD DATE: 25 March 2021 
DOCKET NUMBER: AR20200005092 
APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge, and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his narrative reason for separation as "Secretarial Discretion." 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
. 
DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 11 October 2019, with a self-authored statement 

. 
Counsel's brief 

. 
Department of Veterans Affairs (VA) Form 21-22a (Appointment of Individual as Claimant's Representative) 

. 
Memorandum, dated 23 March 2010, subject: Iron Horse Certificate of Achievement 

. 
DD Form 214, for the period ending 23 March 2012 


FACTS: 
1. 
The applicant did not file within the three-year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2. 
The applicant states: 


a. 
He joined the Army at age 19, after failing to graduate from a trade school.  He was running away from his failure. During basic training, he gave up smoking and other habits that he had found were actually distractions. This lead to him being motivated to learn his duties but in advanced individual training (AIT), he found he wasn't as reformed as he thought. He had some trouble in the last week of AIT and ended up in jail. 

b. 
His first duty station was in South Korea. He had to have surgery, was unable to complete the mandatory physical fitness test, was placed on light duty, and was unable to qualify for his Driver's Badge. During his period on profile, he gained weight and was 


told that he had six months to meet standards or be discharged. He was able to meet the standards but his commander told him that he was keeping everyone on the program for two more months to insure no one had a relapse. When he questioned this action, the commander told him he was being disrespectful. The commander did not lift the bar, which caused problems with his attempts to reenlist. 
c. 
He began to feel that joining the military was not the right decision for him. He was reassigned to a smaller base and developed anxiety over not being around his friends and peers, as well as the frequent direct fire attacks the unit came under. 

d. 
He developed a cyst in his throat that was drained; he was returned to his original unit.  He became more depressed seeing Soldiers and civilian casualties, and remembers a child who lost an arm and a leg to an improvised explosive device (IED). He felt he wasn't able to do anything to prevent further injuries. After returning to his smaller base, he was introduced to hashish by one of the Afghani interpreters. He began using it indiscriminately; he eventually tested positive on a urinalysis and was discharged for misconduct. 


3. Counsel reiterated the applicant's service history and argued that: 
a. 
Symptoms of the applicant's then-undiagnosed PTSD caused the misconduct that resulted in his inequitable discharge. While deployed in Afghanistan, the applicant experienced harrowing events that included witnessing his fellow Soldiers suffering from severe combat injuries and performing regular search and destroy missions into dangerous areas of Afghanistan. These stressors caused and aggravated symptoms, including depression, avoidance, loneliness, nightmares, guilt, and losing interest in enjoyable activities. The applicant was desperate to quell these symptoms by befriending Afghani interpreters and by using hashish. 

b. 
The applicant's general discharge was inequitable because the disciplinary infraction was the result of his undiagnosed and untreated PTSD.  The Army inequitably discharged the applicant due to symptoms of a disability not because of willful misconduct. The applicant was an outstanding service member who was suffering from a disease that he did not know how to handle. 

c. 
The applicant enlisted in the Army at the age of 19, in order to get on track and pursue discipline that he so badly wanted. While serving, he realized he was different from his fellow Soldiers, as he let otherwise manageable hardships gravely affect him. Despite this, he made every effort to excel and ultimately let his mental illness get the best of him. 

d. 
The applicant has come a long way in the few short years since he left the Army. He has acknowledged his mistakes and is beginning to understand how to manage the symptoms of his disability. 


4. 
The applicant enlisted in the Regular Army on 17 July 2008. 

5. 
The applicant was awarded the Iron Horse Certificate of Achievement for the period 4 May 2009 through 2 May 2010. 

6. 
Before a general court-martial on or about 2 December 2008, at Fort Lee, VA, the applicant was convicted of: 

. 
without authority, absenting himself from to his appointed place of duty, between on or about 8 November 2008 and on or about 9 November 2008 

. 
unlawfully striking a fellow Soldier repeatedly in the head and face with a closed fist, and kicking him in the stomach, on or about 16 November 2008 



7. 
The applicant, while serving in Afghanistan on 7 October 2011, was investigated for the illegal possession of hashish. The U.S. Army Criminal Investigative Command (CID) completed its investigation and the case was referred for disciplinary actions. 

8. 
The applicant accepted nonjudicial punishment (NJP) on 27 October 2011, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongfully possessing hashish, on or about 13 September 2011. 

9. 
The applicant was afforded a medical evaluation on 12 December 2011, which found no disqualifying abnormalities. The DD Form 2807-1 (Report of Medical History) shows he reported anxiety, which worsened with load noises and at night and interfered with his sleep.  The DD Form 2697 (Report of Medical Assessment) shows the examining official diagnosed him with alcohol abuse in remission and found no psychiatric disorders. He was cleared to participate in any administrative actions deemed appropriate by his command. 

10. 
The applicant's immediate commander notified the applicant on 9 February 2012 of his intent to initiate actions to separate the applicant under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, by reason of misconduct, illegal drug possession. 

11. 
The applicant consulted with legal counsel on 13 February 2012, and was advised of the basis for the contemplated separation actions for minor disciplinary infractions. Subsequent to receiving legal counsel, he acknowledged the proposed discharge under the provision of Army Regulation 635-200 Chapter 14, paragraph 14-12c and its effects, and his available rights.  He further acknowledged he understood that if a general 

discharge was approved he could be deprived of some or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of some of his rights and benefits as a veteran under both Federal and State laws. He was advised he could submit any statements he desired in his own behalf. His request for discharge indicates he submitted a statement; however, it is not available for review. 

12. 
The applicant's immediate commander formally recommended the applicant's separation from service under the provisions of Army Regulation 635-200, paragraph 14-12c and provided a statement in which he noted that though the applicant's misconduct warranted separation, he was instrumental in the overall success of Alpha Company while attached in direct support of them. His hard work and dedication were taken into consideration when determining the characterization of service that he should receive from this discharge. It was commendable what he did to serve the company and the U.S. Army and a general discharge was recommended. 

13. 
The separation authority approved the recommended discharge on 23 February 2012, waived further counseling and rehabilitation efforts, and directed that the applicant's service be characterized as under honorable conditions. 

14. 
The applicant was discharged on 23 March 2012, under the provisions of Army Regulation 635-200, paragraph 14-12c (2), by reason of misconduct (drug abuse).  The DD Form 214 he was issued confirms his service was characterized as under honorable conditions. 

15. 
The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition. 

16. 
The Army Discharge Review Board denied the applicant's request for an upgrade on 23 October 2012. 

17. 
The applicant has not provided and the record does not contain a diagnosis of PTSD or other mental health disability. 

18. 
The Board should consider the applicant's statement in accordance with the published equity, injustice, and clemency determination guidance.  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 mental health conditions, including PTSD.  The 


Veteran’s testimony alone, oral or written, may establish the existence of a condition or 
experience, that the condition or experience may have existed during or might have been aggravated by military service, and that the condition or experience may excuse or mitigate the discharge. 
MEDICAL REVIEW: 
1. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following 
findings and recommendations: Based on liberal consideration, the applicant’s service 
connected, combat related PTSD, and nexus between PTSD and substance use, mitigates the basis for separation.  Accordingly, an upgrade is recommended. 
2. In June 2009, the applicant went to primary care reporting stress related to a romantic relationship and diagnosed with an Adjustment Disorder with medication prescribed. In October 2011, post-deployment, the applicant went to behavioral health 
reporting difficulty sleeping, being easily irritated, and “weird dreams.” The applicant 
self-referred to the Army Substance Abuse Program (ASAP) with a diagnosis of Alcohol Abuse. The applicant initially stated his hash use was a one-time incident. However, 
later admitted “abusing substances for quite some time…” In November, he was Command referred to ASAP after using cocaine or bath salts; he wasn’t clear what he 
consumed. In December, the applicant had a Chapter Mental Status Exam (MSE) and cleared with no psychiatric diagnosis. The applicant attended ASAP through March 2012. 
3. The applicant is 30% service connected for combat related PTSD. In March 2015, the applicant saw psychiatry with diagnoses of Unspecified Trauma and Stressor Related Disorder, Unspecified Depressive Disorder, and Cannabis Use Disorder. He returned in January 2016 with the same diagnosis requesting substance treatment. In April, he attended a PTSD evaluation and diagnosed with combat related PTSD. In August, the applicant had a Compensation and Pension (C&P) exam with diagnoses of PTSD, Cannabis Use Disorder, and Alcohol Use Disorder. The applicant has sporadically attended appointments with no current treatment. 
BOARD DISCUSSION: 
After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, a medical advisory opinion and published DoD guidance for consideration of discharge upgrade requests. The Board considered the 
applicant counsel’ statement, his record of service, the frequency and nature of his 
misconduct and the reason for his separation. The Board considered the medical records, VA documents provided by the applicant and the review and conclusions of the advising official. Evidence of record shows, at the time of separation, documentation supports the narrative reason for separation properly identified on the DD Form 214. One potential outcome discussed was to grant relief by upgrading the characterization of service to honorable as recommended by the medical advisory findings. Notwithstanding, the medical advisory recommendation the Board majority voted to deny relief for an upgrade to honorable. The Board concluded the characterization of service received at the time of discharge was appropriate. Therefore, the Board denied relief. 
BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 
XXX : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING 
XXX XXX 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. 

X 
CHAIRPERSON 
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 three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 

2. 
 Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 

3. 
 Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  


a.  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.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 
c. Paragraph 5–3 (Secretarial plenary authority) states: 
(1) Separation under this paragraph is the prerogative of the Secretary of the Army.  Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army.  Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee as announced in updated memorandums. 
(2) 
Secretarial separation authority is normally exercised on a case-by-case basis but may be used for a specific class or category of Soldiers. When used in the latter circumstance, it is announced by special HQDA directive that may, if appropriate, delegate blanket separation authority to field commanders for the class category of Soldiers concerned. 

(3) 
Individual cases that may be submitted to HQDA for consideration of separation under Secretarial plenary authority include those for separation under this paragraph include, but are not limited to, HIV infection, refusal to submit to medical care, and when religious practices cannot be accommodated. 

(4) 
Separation under this paragraph may be voluntary or involuntary. When involuntary separation proceedings are initiated, the notification procedure will be used; however, the provision for requesting an administrative board is not applicable.  Medical examinations are required for Soldiers being processed for involuntary separation. 

d. 
Chapter 14 (Separation for Misconduct) establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. 

e. 
Paragraph 14-12c (Commission of a Serious Offense) applied to Soldiers who committed a serious military or civilian offense, when required by the specific circumstances warrant separation and a punitive discharge was, or could be authorized for that same or relatively similar offense under the UCMJ. 


4. 
 The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR), on 3 September 2014 [Hagel Memorandum], to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 

5. 
 The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017 [Kurta Memorandum]. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating 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. 


a. 
 Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. 

b. 
 An honorable discharge characterization does not require flawless military service.  Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. 

c. 
 Liberal consideration does not mandate an upgrade.  Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 


6. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards (DRB) and Boards for Correction of Military/Naval Records (BCM/NR) on 25 July 2018 [Wilkie Memorandum], 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 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 grounds. 
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. 


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