IN THE CASE OF: BOARD DATE: 7 April 2021 DOCKET NUMBER: AR20200005178 APPLICANT REQUESTS: Her under honorable conditions (general) discharge be upgraded to an honorable discharge. Additionally, she requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 22 July 2019, with self-authored statement * Department of Veterans Affairs (VA) Compensation and Pension Examination Notes, dated 14 December 2018 * VA Rating Decision, dated 31 January 2019 * VA Decision Letter, dated 1 February 2019 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 she did not get into trouble prior to going to Operation Desert Shield/Desert Storm. Disciplinary action was taken against her after returning from the Gulf War. She has recently been diagnosed with post-traumatic stress disorder (PTSD) and this is the reason for her getting into trouble. 3. In a self-authored statement, the applicant provides her rationale for why she believes the Board should change her characterization of service. She details her mental and physical state and her experiences during deployment. Additionally, she describes the circumstances surrounding her financial problems and emotional state after her return. 4. The applicant enlisted in the Regular Army on 22 January 1988. She reenlisted in the Regular Army on 15 June 1990. 5. The applicant served in Southwest Asia from 1 September 1990 to 31 March 1991. 6. The applicant accepted non-judicial punishment (NJP) on 16 September 1991, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failure to go at the time prescribed to her appointed place of duty, on or about 3 September 1991. 7. The applicant was sentenced to six months of probation by the State Court of Muscogee County, Georgia, for a misdemeanor on 26 June 1992. 8. The applicant accepted NJP, under the provisions of Article 15 of the UCMJ, on the following dates: * on 23 September 1992, for writing bad checks on or about 1 April 1992 and on or about 26 May 1992 * on 20 April 1993, for being absent without leave (AWOL) on or about 17 September 1992; for failure to go at the time prescribed to her appointed place of duty, on or about 23 October 1992 and an illegible date in March 1993; and for failure to maintain a family care plan, on or about 23 March 1992 9. The applicant's immediate commander notified the applicant on 5 July 1993 of her intent to initiate separation actions against the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for a pattern of misconduct. 10. The applicant consulted with counsel on 6 July 1993 and was advised of the basis for the contemplated actions to separate her and of the rights available to her. She elected to submit a statement in her own behalf, wherein she requested to continue her service until her expiration term of service. Additionally, she stated that she had been harassed, railroaded, and blackballed by her chain of command. 11. The applicant's immediate commander formally recommended her separation from service under the provisions of Army Regulation 635-200, Chapter 14, by reason of misconduct. The separation authority approved the recommended discharge on 19 September 1993 and directed the issuance of a DD Form 257A (General Discharge Certificate). 12. The applicant was discharged on 6 October 1993, under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct - pattern of misconduct. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms her service was characterized as under honorable conditions (general). 13. The applicant was issued a DD Form 215 (Correction to DD Form 214) on 10 February 1998, which shows her service in Southwest Asia and the Southwest Asia Service Medal with two bronze service stars and Kuwait Liberation Medal. 14. The applicant provides a VA decision letter, dated 1 February 2019, which shows she was granted a service-connected disability for PTSD with unspecified depressive disorder, in the amount of 50 percent (%), effective 19 April 2017. 15. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting a discharge upgrade contending that the misconduct leading to her Under Honorable Conditions (General) discharge was due to PTSD she developed during her time in the Army, most notably as a result of her deployment to Southwest Asia b. The Agency psychologist was asked by the ABCMR to review this request. Documentation reviewed includes the applicant’s completed DD Form 149 and supporting documentation and her military separation packet. The VA electronic medical record, Joint Legacy Viewer (JLV) was also reviewed. The military electronic medical record (AHLTA) was not reviewed as it was not in use during her time in service. A hard copy of military medical records or civilian medical documents were not provided for review. c. Review of the applicant’s military documentation indicates that she enlisted in the Regular Army on 21 Jan 1988. While on active duty, she was assigned overseas to Germany from 25 Jun 1988 - 27 Jul 1990. She additionally was deployed to Southwest Asia (Saudi Arabia) from 01 Sep 1990 - 31 Mar 1991. Her duty assignment was as an Equipment Records and Parts Specialist. Her awards included the Army Good Conduct Medal and the National Defense Service Medal. She received three Article 15’s for missing “morning work call” (03 Sep 1991), insufficient funds in her bank account to cover checks (01 Apr 1992, 26 May 1992), absent from duty (17-18 Sep 1992), missing “PT formation” (30 Oct 1992, Mar 1993) and disobeying an order from an officer (Mar 1993). She received a misdemeanor for criminal trespassing, dated 26 May 1992, by a civilian court. This charge was not included by her commander’s list of reasons for her General discharge. A Notification of Intent to Separate Under AR 635-200, Chapter 14 was initiated by her commander on 05 Jul 1993. She received an Under Honorable Conditions (General) discharge on 06 Oct 1993 with narrative reason: Misconduct – Pattern of Misconduct. d. The VA electronic medical record, Joint Legacy Viewer (JLV) did indicate an 80% service connected disability with Posttraumatic Stress Disorder 50%, Irritable Colon 30%, Migraine Headaches 30% and Tinnitus 10%. In a SWS Psychosocial Assessment, dated 02 Sep 2010, the social worker indicated, “’Vet notes driving down the ‘Highway of Death’ and seeing dead bodies everywhere, heads missing, limbs, missing bodily parts, bodies burned to a crisp black all over the road.” The Problem List had one behavioral health entry, Posttraumatic Stress Disorder (04 Aug 2017). e. Based on the available information and in accordance with the Liberal Consideration guidance, it is the opinion of the Agency psychologist that the applicant has a mitigating Behavioral Health condition, PTSD. As there is an association between PTSD and avoidant behavior, there is a nexus between applicant’s diagnosis of PTSD and her absences/neglectful performance from her assigned unit, duties, and financial responsibilities. In addition, as there is an association between PTSD and resistant, negative attitudes toward authority figures, there is a nexus between her PTSD symptoms and the disrespectful disregard of specific orders she may have demonstrated. Chronological review of her military career indicates a dramatic change in the applicant’s motivation, temperament and level of instability occurred following her deployment to Southwest Asia. Such a radical change in behavior is consistent with the behavioral changes seen in soldiers who develop PTSD in a combat environment. A discharge upgrade is recommended. 16. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records, a medical advisory opinion and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, her record of service, the frequency and nature of her misconduct and the reason for her separation. The Board considered the medical records and the review and conclusions of the advising official. Notwithstanding the medical advisory finding there is a nexus between applicant’s diagnosis of PTSD and her absences/neglectful performance from her assigned unit, duties, and financial responsibilities. In addition, as there is an association between PTSD and resistant, negative attitudes toward authority figures, there is a nexus between her PTSD symptoms and the disrespectful disregard of specific orders she may have demonstrated. The Board disagreed, finding insufficient evidence of in- service mitigating factors to overcome the misconduct based on the civil conviction. The Board agreed that the applicant's discharge characterization is warranted as she did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. Therefore, they denied relief. 2. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. 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: Except for the correction addressed in Administrative Note(s) below, the Board found 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. ADMINISTRATIVE NOTE(S): A review of the applicant's record shows his DD Form 214, for the period ending 6 October 1993, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries to Item 18 (Remarks): * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 880122 UNTIL 900614 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. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. 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. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. Chapter 14 of this regulation 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, conviction by civil authorities, desertion, or absences without leave. 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 (UOTHC) is normally considered appropriate. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 4. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs), on 3 September 2014, 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. 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 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 DRBs and BCM/NRs on 25 July 2018, 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200005178 5 THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDING 1