ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 October 2021 DOCKET NUMBER: AR20200005853 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: . DD Form 149 (Application for Correction of Military Record), 10 June 2020 . VA Form 21-4138 (Veterans Administration) (Statement of Claim), 19 December 2019 . Standard Form (SF) 558 (Emergency Care and Treatment), 4 November 1997 . SF 600 (Health Record), 23 January 1998 . Memorandum, Staff Judge Advocate, U.S. Army Garrison, Fort Sam Houston, 9 March 1998 . memorandum, Secretary of Defense, 3 September 2014 (Supplemental Guidance to Military Boards for Correction of Military Records Considering Discharge Upgrade Requests by Veterans Claiming Post-Traumatic Stress Disorder (PTSD)) . Memorandum, Principal Deputy Under Secretary of Defense, 24 February 2016 (Consideration of Discharge Upgrades Pursuant to Supplemental Guidance to Military Boards for Correction of Military Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD or Traumatic Brain Injury (TBI)) . Memorandum, Office of the Undersecretary of Defense, 25 August 2017 (Clarifying Guidance to Military Review Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of Their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment) . Department of Veterans Affairs (VA) Rating Decision, 17 December 2019 . VA Form 21-0960O-2 (Mental Health Disorder Questionnaire), 3 December 2019 . VA Form 4138, 8 June 2020 . 178 pages of additional VA Medical Documents . VA Rating Decisions, 12 November 2020 and 30 August 2021 . screenshots of VA rating status, not dated FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States 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: a. He was harassed by drill sergeants and told to take the discharge offered or he would be there for another year waiting for the medical discharge. He was being treated for depression and alcohol abuse at Fort Sam Houston, TX, which was caused by pain from his injuries in service. b. He was afraid and threatened by his superiors harassing him and they would continue to escalate their level of abuse and it would not stop unless he accepted the under other than honorable conditions discharge. c. A drill sergeant wrote him up for being late for fireguard while he was on crutches for severe left ankle impingement. The same drill sergeant wrote him up for smoking when eight other Soldiers were also smoking with him. d. While he was at AIT (advanced individual training) at Fort Sam Houston, his wife found out they were going to have their first child. His wife drove to San Antonio and he left base to see her. He was told he could leave base to see the ultra sound of his daughter. e. He is now able to face the stress of the injustice and believe it is time to correct it even though it has been 20 years since his discharge. 3. A review of the applicant's service records shows: a. On 11 March 1997, he enlisted in the Regular Army and entered active duty at 21 years of age. b. He attended the medical specialist course for 10 weeks at Fort Sam Houston but was not awarded a primary military occupational specialty. c. He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on four occasions. (Note the records of his NJP were obtained from his commander's notification of separation memorandum. The DA Forms 2627 (Record of Proceedings under Article 15 of the UCMJ) are not contained in the available records). The record of other disciplinary action including NJP from his commander's notification memorandum shows: (1) On 27 June 1997, he received a summarized NJP for smoking. His punishment consisted of 14 days of extra duty. (2) On 11 July 1997, he received company grade NJP for being absent from his place of duty on five occasions; fireguard on one occasion, extra duty on two occasions, and two formations. His punishment consisted of forfeiture of $210.00, extra duty and restriction for 14 days. (3) On 25 November 1997, he received company grade NJP for disobeying a noncommissioned officer two times, for being disrespectful to a noncommissioned officer, and for being drunk. His punishment consisted of forfeiture of $210.00, restriction and extra duty for 14 days. (4) On 20 January 1998, he received a field grade NJP for being absent without leave (AWOL) two time for a total of 3 days. His punishment consisted of forfeiture of $467.00 per month for 2 months, and restriction and extra duty for 45 days. d. He proved a copy of: (1) An SF 558, showing he received command directed emergency care and treatment for alcohol use. (2) An SF 600, 23 January 1988, showing he was evaluated at Community Mental Health Service, Brook Army Medical Center, for separation proceedings. The health record shows: (a) The chief clinical psychologist diagnosed him with adjustment disorder with depressed mood, alcohol abuse, and low back pain. He further stated there was no evidence of mental defect, emotional illness, or psychiatric disorder of sufficient severity to warrant disposition through military medical channels. He was mentally responsible for his behavior, could distinguish right from wrong, and possessed sufficient mental capacity to understand and participate intelligently as a respondent in any administrative proceedings. He was psychiatrically cleared for administrative separation. (b) He was graduated from the 91B (Medical Specialist) course in August 1997 but because of back problems, was being processed for a medical board. He wished to be administratively separated from the military rather than being processed for a medical board. e. On 3 February 1998, his immediate commander notified him of his intent to initiate separation action against him under the provisions of AR 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for a pattern of misconduct, and notified him of his rights. The specific reasons for his proposed action were: He received NJP under Article 15, four times and received numerous negative counselings. Further rehabilitation would be in vain and not in the best interest of the Army. His commander recommended his service be characterized as under other than honorable conditions. He understood he had a right to: . consult with consulting counsel and/or civilian counsel at no expense to the Government within a reasonable time (not less than 3 duty days) . request a hearing before an administrative board or he may present written statements instead of board proceedings at the time of separation . obtain copies of documents that would be sent to the separation authority supporting the proposed separation . he may submit a conditional waiver of his right to have his case heard by an administrative board f. On 3 February 1998, the applicant acknowledged receipt of his commander's separation notification. He consulted with counsel and was advised of the basis of the contemplated separation against him, its effect, and his rights. He waived consideration of his case by an administrative board and waived personal appearance before an administrative separation board. He elected not to submit statements in his own behalf. He was advised of his right to submit a conditional waiver of his right to have his case considered by an administrative board. He understood that he may expect to encounter substantial prejudice in civilian life if a discharge under other than honorable conditions was issued to him. g. On 3 February 1998, his immediate commander recommended approval of his separation under AR 635-200, paragraph 14-12b, for a pattern of misconduct, and recommended he be issued an Under Other Than Honorable Discharge Certificate. h. His intermediate commanders recommended approval of his separation under AR 635-200, paragraph 14-12b, for a pattern of misconduct, and that he receive an Under Other Than Honorable Discharge Certificate. i. On 6 March 1998, the separation authority (Commanding Officer, U.S. Army Garrison Fort Sam Houston), approved and ordered the applicant's discharge under provisions of AR 635-200, paragraph 14-12b, for a pattern of misconduct, and directed issuance of an Under Other Than Honorable Discharge Certificate. j. On 19 March 1998, the applicant was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of paragraph 14-12b, of AR 635-200 due to misconduct, with an under other than honorable conditions characterization of service. He completed 1 year and 9 days of active service, was not awarded a MOS and was awarded no decorations medals, or badges. He had three days lost time; 7 January 1998 to 7 January 1998, and 11 January 1998 to 12 January 1998 (3 days total). k. On 26 October 2012, the Army Discharge Review Board reviewed his discharge processing and determined the characterization and reason for his service was both proper and equitable and voted not to grant relief. 4. He provided copes of: a. A statement from his mother, 26 November 2019 outlining her son's experience in the Army and how it affected him. . at Fort Sam Houston, things began to change for her son; he became very depressed and his moods were getting worse with each call she received from him she learned of his constant harassment three drill sergeants were inflicting on him . she found out he was contemplating suicide at Fort Sam Houston; she contacted his commander and informed him of her son's contemplations . the drill sergeants broke her son mentally, physically, and emotionally and when she picked him up after he was discharged he was changed and completely drained mentally, physically, and emotionally . before he went in the Army he was kind, humble, respectable, proud, and funny but now he is not b. Secretary of Defense memorandum, 3 September 2014 (Supplemental Guidance to Military Boards for Correction of Military Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD), known as the "Hagel memo." c. Principal Deputy Under Secretary of Defense memorandum, 24 February 2016 (Consideration of Discharge Upgrades Pursuant to Supplemental Guidance to Military Boards for Correction of Military Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD or TBI), known as the "Carson memo." d. Office of the Undersecretary of Defense, memorandum, 25 August 2017 (Clarifying Guidance to Military Review Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of Their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment), known as the "Kurta memo." e. A VA mental health questionnaire, 3 December 2019. f. VA rating decisions, 17 December 2019, 12 November 2020, 30 August 2021, with 178 pages of VA health notes and treatment for his left-ankle sprain, hip pain, back pain, depression, and PTSD. 5. By Regulation (AR 635-200), chapter 14 provides for separating enlisted members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. 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 is normally appropriate for a Soldier discharged under this chapter. 6. By regulation (AR 635-40 Disability Evaluation for Retention, Retirement, or Separation), if a member was found unfit because of physical disability, it provided for disposition of the member according to applicable laws and policies. Paragraph 4­24e(3) provided that Based upon the final decision of the Commanding General, U.S. Army Physical Disability Agency, or the Army Physical Disability Review Board, the Commanding General, Military Personnel Center would issue retirement orders or other disposition instruction separation for physical disability with severance pay. 7. 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. 8. MEDICAL REVIEW: a. The applicant is applying to the ABCMR to upgrade his under other than honorable conditions discharge to honorable. The applicant states: (1) He was harassed by drill sergeants and told to take the discharge offered or he would be there for another year waiting for the medical discharge. He was being treated for depression and alcohol abuse at Fort Sam Houston, TX, which was caused by pain from his injuries in service. He was afraid and threatened by his superiors harassing him and they would continue to escalate their level of abuse and it would not stop unless he accepted the under other than honorable conditions discharge. (2) A drill sergeant wrote him up for being late for fireguard while he was on crutches for severe left ankle impingement. The same drill sergeant wrote him up for smoking when eight other Soldiers were also smoking with him. While he was at AIT (advanced individual training) at Fort Sam Houston, his wife found out they were going to have their first child. His wife drove to San Antonio and he left base to see her. He was told he could leave base to see the ultra sound of his daughter. He is now able to face the stress of the injustice and believe it is time to correct it even though it has been 20 years since his discharge. b. The ABCMR Behavioral Health (BH) Advisor was asked to review this case. Documentation reviewed includes his submission and the VA electronic medical record, Joint Legacy Viewer (JLV). A review of the Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Management Solutions (HAIMS) were not reviewed as they were not in use at the time of service. c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The ROP indicates that the applicant entered military service on 11 March 1997 and was discharged on 19 March 1998, the applicant was discharged accordingly. His DD Form 214 shows he was discharged under the provisions of paragraph 14-12b, of AR 635-200 due to misconduct, with an under other than honorable conditions characterization of service. d. He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on four occasions. (Note the records of his NJP were obtained from his commander's notification of separation memorandum. The DA Forms 2627 (Record of Proceedings under Article 15 of the UCMJ) are not contained in the available records). The record of other disciplinary action including NJP from his commander's notification memorandum shows: . On 27 June 1997, he received a summarized NJP for smoking. . On 11 July 1997, he received company grade NJP for being absent from his place of duty on five occasions; fireguard on one occasion, extra duty on two occasions, and two formations. . On 25 November 1997, he received company grade NJP for disobeying a noncommissioned officer two times, for being disrespectful to a noncommissioned officer, and for being drunk. . On 20 January 1998, he received a field grade NJP for being absent without leave (AWOL) two time for a total of 3 days. e. He proved a copy of An SF 558, showing he received command directed emergency care and treatment for alcohol use. f. He provided SF 600, 23 January 1988, showing he was evaluated at Community Mental Health Service, Brook Army Medical Center, for separation proceedings. The health record shows: g. He provided a document wherein chief clinical psychologist diagnosed him with adjustment disorder with depressed mood, alcohol abuse, and low back pain. He further stated there was no evidence of mental defect, emotional illness, or psychiatric disorder of sufficient severity to warrant disposition through military medical channels. He was mentally responsible for his behavior, could distinguish right from wrong, and possessed sufficient mental capacity to understand and participate intelligently as a respondent in any administrative proceedings. He was psychiatrically cleared for administrative separation. h. He was graduated from the 91B (Medical Specialist) course in August 1997 but because of back problems, was being processed for a medical board. He wished to be administratively separated from the military rather than being processed for a medical board. On 3 February 1998, his immediate commander notified him of his intent to initiate separation action against him under the provisions of AR 635-200, paragraph 14-12b, for a pattern of misconduct, and notified him of his rights. The specific reasons for his proposed action were: He received NJP under Article 15, four times and received numerous negative counselings. Further rehabilitation would be in vain and not in the best interest of the Army. His commander recommended his service be characterized as under other than honorable conditions. On 6 March 1998, the separation authority approved and ordered his discharge for a pattern of misconduct, and directed issuance of an Under Other Than Honorable Discharge Certificate. ij. On 26 October 2012, the Army Discharge Review Board reviewed his discharge processing and determined the characterization and reason for his service was both proper and equitable and voted not to grant relief. j. Within the 178 pages of VA health notes supplied by the applicant there is no formal DSM 5 diagnosis of PTAD. There are references the applicant mentions a hx of PTSD, and comments in the notes that indicate PTSD like symptoms. His screening instruments for PTSD are consistently low, indicating that PTSD symptoms are NOT present. j. JLV contains BH diagnoses of Major Depression and PTSD. An encounter dated 24 March 2020 notes, “Veteran reported that he experienced a lot of emotional and verbal abuse on the behalf of his superiors while serving in the military.” His PTSD screening score of 2 indicates, “The score for this administration is 2, which indicates a NEGATIVE screen for PTSD in the past month.” k. While the applicant is diagnosed with PTSD, medical records do not indicate the etiology of this diagnosis. At the time of his discharge he was diagnosed with Adjustment Disorder which would not be mitigating for his infractions listed above. The VA has since diagnosed the applicant with PTSD and the Board must therefore apply liberal consideration in determining BH mitigation. The applicant did meet retention standards at the time of discharge. The applicant does not have a service connection. BOARD DISCUSSION: The Board carefully considered the applicants request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, record of service, and the reason for his separation and whether to apply clemency. His chain of command recommended his separation for a pattern of misconduct, and notified him of his rights; specifically: four Article 15s and numerous negative counseling. The separation authority approved his discharge for a pattern of misconduct, and directed issuance of an Under Other Than Honorable Discharge Certificate. Board members also agreed with the medical reviewer's assessment that at the time of his discharge he was diagnosed with Adjustment Disorder which would not be mitigating for his infractions listed above. The applicant did not provide evidence of post-service achievements or letters of reference sufficient to support a clemency determination. 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. 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. 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, United States 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 1. Title 10, United States 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 – Enlisted Personnel) 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. c. Chapter 14 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, and convictions by civil authorities. 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 is normally appropriate for a Soldier discharged under this chapter. 3. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation), in effect at the time, established the Army Physical Disability Evaluation System according to the provisions of chapter 61 of Title 10 United States Code and Department of Defense Directive 1332.18. It set forth policies, responsibilities, and procedures that apply in determining whether a member was unfit because of physical disability to perform the duties of his office, grade, rank, or rating. If a member was found unfit because of physical disability, it provided for disposition of the member according to applicable laws and policies. Paragraph 4-24e(3) provided that Based upon the final decision of the Commanding General, U.S. Army Physical Disability Agency, or the Army Physical Disability Review Board, the Commanding General, Military Personnel Center would issue retirement orders or other disposition instruction separation for physical disability with severance pay. 4. 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. 5. 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. 6. 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. //NOTHING FOLLOWS//