IN THE CASE OF: BOARD DATE: 14 October 2021 DOCKET NUMBER: AR20200007442 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States) 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: * he was chaptered out of the military under chapter 10 for the use of opiates; he was told if he completed an intensive outpatient program, he would deploy and stay in * he has been diagnosed with post-traumatic stress disorder (PTSD)/substance abuse and he is in treatment * he was put on opiate/pain killer when he was at Fort Bliss but when he arrived at Fort Knox, his physician cut him off completely * during his military service he was injured, he was put on oxycodone but it was discontinued at Fort Knox; he addressed the issue with his chain of command but they told him to suck it up * he is currently rated at 10% for hearing and 30% for PTSD by the Department of Veterans Affairs (VA) * since his discharge, he has worked hard on his substance abuse issue; he wishes he could take it back 3. Review of the applicant's service records shows: a. He had prior service in the Army National Guard from 27 March 2006 to 11 November 2009. He enlisted in the Regular Army on 12 November 2009 in the rank/grade of staff sergeant/E-6. b. He held military occupational specialty 19D (Cavalry Scout) and he reenlisted on 8 March 2012. c. On 21 May 2013, he was issued a physical profile for Adjustment Disorder with Anxiety, Insomnia, and Sciatica. The profile stated "Soldier is taking medication that may Increase risk of hot weather injury. Tasks such as driving, operating heavy machinery or working on scaffolding/or near heavy machinery may be dangerous to self or others. Soldier is taking medication that should not be combined with alcoholic beverages." d. On 27 June 2013, he accepted nonjudicial punishment under Article 15 for failing to go at the time prescribed to his appointed place of duty, wrongfully wearing upon his uniform a Sapper Tab, and wrongfully wearing upon his uniform a Ranger Tab. His punishment included reduction to specialist (SPC)/E-4, suspended forfeiture of pay, and extra duty and restriction. e. His DD Form 458 (Charge Sheet) is not available for review with this case. Other evidence shows court-martial charges were preferred against him for violating the Uniform Code of Military Justice. A charge sheet with one or more charges would have been initiated with recommendations to refer to trial by a special court-martial empowered to adjudge a bad conduct discharge or a general court-martial f. His request for voluntary discharge under chapter 10 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) is also not available for review with this case. g. What is available is a memorandum, dated 10 January 2014, that shows the separation authority approved the request for discharge in lieu of trial by court-martial and ordered the applicant discharged from Army under the provisions of AR 635-200, Chapter 10, with a characterization of service of service under other than honorable conditions and reduction to the lowest enlisted grade. h. The applicant was discharged on 27 January 2014. His DD Form 214 (Certificate of Release or Discharge from Active Duty) show she was discharged under the provisions of Chapter 10, AR 635-200, for discharge “In Lieu of Trial by Court-Martial” with an under other than honorable conditions discharge. His DD Form 214 show she completed 4 years, 2 months, and 16 days of active service. It also shows in: (1) Block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized): * Army Commendation Medal (2nd Award) * Army Achievement Medal * Army Good Conduct Medal * National Defense Service Medal * Global War on Terrorism Service Medal * Iraq Campaign Medal with campaign star * NCO Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon * Armed Forces Reserve Medal with M Device (2) Block 18 (Remarks): "Continuous honorable service: 20091112-20120307" i. On 9 October 2018, after careful review of his application, military records, and all other available evidence, the Army Discharge Review Board determined he was properly and equitably discharged. Accordingly, his request for a change in the character and/or reason of his discharge was denied. 4. By regulation (AR 635-200), Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 5. 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. 6. Based on the applicant’s contentions the Army Review Boards Agency (ARBA) medical staff provided a medical review for the Board members. See ?MEDICAL REVIEW? section. 7. MEDICAL REVIEW: The ARBA Medical Advisor reviewed the application and supporting documents, the Army electronic medical record (AHLTA) and the VA electronic medical record (Joint Legacy Viewer (JLV)). a. Review of AHLTA indicates that the applicant was diagnosed with the following behavioral health conditions while on active duty: Adjustment Disorder with anxiety; Adjustment Disorder with anxiety and depressed mood; Adjustment Disorder with mixed emotional features; Alcohol Abuse; Alcohol Disorders; Anxiety Disorder not otherwise specified; Attention Deficit/Hyperactivity Disorder; history of concussion; Impulse Control Disorder; Major Depression, recurrent, mild; PTSD; Nicotine Dependence; Opioid Dependence; and Substance Use Disorders. b. He was initially seen by behavioral health in January 2011 when he presented with complaints of nightmares, depression, anxiety and excessive alcohol consumption. He was diagnosed with Adjustment Disorder with anxiety and Alcohol Abuse and seen by psychiatry and started on antidepressant and sleeping medication. On 19 April 2011, he was diagnosed with PTSD. He attended the Army Substance Abuse Program (ASAP) and completed their program successfully in July 2011. c. In March 2013, he reportedly developed suicidal ideation, played Russian roulette with his roommates’ handguns, and then pawned the handguns to keep himself safe. He subsequently recovered one of the guns but the other two had been sold. He was charged at this time with two class D felonies for stealing the handguns. d. In April 2013, he began demonstrating a pattern of losing his controlled medications and then asking for refills. A 2 May 2013 note indicates that the applicant “had repeated loss of controlled meds.” To help address his various behavioral health issues, he was admitted to the psychiatric intensive outpatient program (IOP) but was prematurely discharged from the program after two weeks for being hostile toward other group members. According to AHLTA, he told his IOP therapist and group that he had a P3 profile and was being medically boarded. When he was told this was not true, he became angry and stormed out of the building, damaging property in the process. e. A July 2013 BH note indicates his gun charges had been dropped by the civilian courts. It also indicates that the applicant had been accused of stealing televisions in his unit and he had worn a Ranger Tab and Sapper Tab on his uniform when he was not authorized to do so. f. In August 2013, he reported suicidal ideation and was psychiatrically hospitalized. While hospitalized, he had a positive urinalysis for cocaine. He ultimately was discharged early from the program due to lack of cooperation. g. In September 2013, he underwent neuropsychological testing which indicated he was performing within the broad average range across most cognitive areas. The lower performance on some individual measures was felt to be due to low frustration tolerance. It was noted that, while testing supported his diagnosis of Adjustment Disorder, it did not support the diagnosis of PTSD. h. A November 2013 behavioral health note effectively summarizes the applicant’s history from March to November 2013: “Since this T last saw SM (March 2013) among other things he has had three positive drug screens, given an Article 15 due to his wearing ranger tab pin when he has never served or received ranger training, threatened to kill his commander, hospitalization, ASAP enrollment, substance abuse IOP, and IOP at DBH. Also had psychological testing in early Oct 2013 and awaiting the results. SM believes he has TBI and/or PTSD and wants to either receive MEB or get an honorable discharge. Has been told he is going to be chaptered. Previous charge of stealing weapon was dropped. SM has been on many medications and Dr. recently discontinued several due to SM reporting he is not taking them. Has seen several providers and currently sees Dr. 3/1 provider”. i. VA medical records (JLV) indicate that the applicant has a combined 60% service connected disability rating, with 50% for PTSD related to combat. His index stressors consist of witnessing a friend get killed by sniper fire; witnessing a gunner get blown up by an improvised explosive device and providing first aid to badly injured Iraqi soldiers. The VA has also diagnosed him with the following conditions: Anxiety Disorder; history of mild traumatic brain injury; Other specified depressive episodes; Alcohol Dependence; Nicotine Dependence; Opioid Dependence; and Psychophysiological Insomnia. j. Based on the available information, no decision regarding medical mitigation can be made as the applicant’s basis for separation is not known. Without knowledge of the basis of separation, a nexus between his PTSD and/or other behavioral health conditions and his misconduct cannot be determined. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service to include deployment, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's PTSD claim and the review and conclusions of the ARBA Medical Advisor. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official that without knowing what specific misconduct led to his separation, it cannot be determined if there is a nexus between his behavioral health conditions and his misconduct. Based on a preponderance of evidence, the Board determined 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 :X :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. 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. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. a. Paragraph 3-7a states 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. Paragraph 3-7b states that 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. 3. 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. 4. 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. 5. 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// ABCMR Record of Proceedings (cont) AR20200007442 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1