IN THE CASE OF: BOARD DATE: 23 November 2021 DOCKET NUMBER: AR20210006298 APPLICANT REQUESTS: * Upgrade his under honorable conditions (general) discharge to honorable * Personal Appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * 2 X DD Form 149 (Application for Correction of Military Record) * 3 X Letters from Department of Veteran Affairs (VA) * Assignment Orders * Permanent Change of Station (PCS) Orders * Reassignment Orders * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Treatment Medical Record Jacket * Medical Documents * VA Summary of Events FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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, in his two applications, states, in effect: a. He was subject to harassment and accusations resulting in continued false allegations that lead to unjust disciplinary actions. b. He ws accused of being gay at one time, which was a form of harassment and it was brought up regularly. He was accused of possessing child pornography, which caused problems since a first sergeant (1SG) had two lower enlisted Soldiers got into his room for a health and welfare check when he was out of the state. There were already problems with these Soldiers in the past. c. The 1SG and he did not get along. The command prior and he had problems as well. The 1SG would constantly find anything and everything to accuse him of even going as far as going to another battalion and threatening someone he was seeing if they continued interactions with the applicant they would also have disciplinary action against them. d. The applicant ws unaware there was a process available to correct his records until he talked to a DAV officer that helped him with his VA claim. He was advised after discussion to submit an application and see about getting a correction to his record. e. While the applicant was in the service he ws accused of having child pornography. This has made his life a nightmare since. He never had any charges brought up against him neither during the time he was in the service nor since he's been out. f. During his time in, the 1SG he had in the beginning was great and they had no issues. As soon as the new 1SG came in, he started to make the applicant's life a living hell. He had junior Soldiers go into the applicant's room while the applicant ws gone. They went into his room within a day of him being gone on a deployment saying there was no odor coming from his room. g. The Soldiers went into his room and said they found child pornography in his room. All the cabinets in the room had been locked before he left for deployment and he knows he did not have any child pornography in his room. h. He felt his life was threatened, while he was on deployment, with the way people were acting towards him to the point he couldn't even do the live fire exercise they had. i. As soon as the deployment was over, he was taken to the Criminal Investigation Division (CID) and questioned about everything. During the time of the investigation, he was put through hell with his unit and would get in trouble for any and everything he did. He was dropped in rank within three months from Specialist (SPC) to Private (PVT). At one point, the company commander sat down with him and asked him about transferring to another post, when the commander knew the difficulties the applicant was having with the 1SG. The applicant told the commander it would be better if he got out the way it was going, the incidents would follow him everywhere. j. The commander agreed to let him get out with an under honorable conditions (general) discharge even though the 1SG was trying to get his discharge to be dishonorable. k. Since getting out, his life still has been a nightmare since the accusations followed him everywhere event when there were no charges for it. He can't even hold a job because of it. The 1SG ruined his life. He was told by a VA representative to apply for an upgrade even though it's been over three years. 3. The applicant provides the following documents, not contained in his service record, for the Board's consideration: a. A letter from the VA, dated 4 March 2019, which is in response to the applicant's Privacy Act request. They provided the applicant with his service treatment records. b. Order published on 10 June 1998, assigning the applicant to the Reception Station at Fort Jackson, South Carolina with a reporting date of 11 June 1998. c. Orders published on 16 November 1998, which reassigned the applicant to Fort Campbell, KY with a reporting date of 19 November 1998. d. Orders published on 1 November 2000, reassigning the applicant to US Army Transition point with a reporting date of 7 November 2000. e. Medical records, which include immunization records, treatment records, audiograms, and laboratory result. He also included his dental records. His medical records show he was seen on: * undated, applicant thought of suicide because his girlfriend would not tell him what was on her mind * undated, applicant was having arguments with parents he felt used, cheated, and taken advantage of * 20 July 1998, for an ingrown toenail * 16 August 1998, for a fever and vomiting * 28 April 1999, for nausea and weakness * 30 July 1999, for STD screen * 16 December 1999, for upper back pain * 16 December 1999, radiologic examination report for cervical pain - loss of normal cervical lordosis with muscle spasm * 17 February 2000, left groin pruritus * 29 March 2000, for upper back pain * 11 April 2000, for history of herpes and requesting a retest * 11 May 2000, for redress of his ingrown toenail * 15 May 2000, follow-up for an ingrown toenail * 12 June 2000, for an ingrown toenail * 14 June 2000, for 3rd degree burn on his leg * 10 July 2000, inability to breathe through his nose and a sore throat * 15 August 2000, sore throat for one week * 6 September 2000, for an ingrown toenail * 21 September 2000, for a chest x-ray which were normal * 12 October 2000, a Mental Health Examination wherein the applicant ws psychiatrically cleared for any administrative action deemed appropriate * 17 October 2000, for dizziness and vomiting f. A letter from the VA, dated 23 March 2020, wherein they made a decision on his VA benefits. It shows: * basic eligibility for dependent's educational assistance was established on 20 November 2019 * entitlement to individual employability was granted 20 November 2019 * service connection for disc prolapse was granted at 10 percent effective 20 November 2019 * service connection for hearing loss was denied * service connection for testicular seminoma was denied * service connection for right knee condition was denied * service connection for restless leg condition was denied * service connection for neuropathy lower extremities was denied * service connection for generalized anxiety disorder with major depressive disorder, severe recurrent was granted at 70 percent effective 20 November 2019 * his combined rating evaluation was 70 percent g. A letter from the VA, rating decision, dated 13 March 2020, which shows the records reflected the applicant was a veteran of the Gulf War Era. He served in the Army from 10 June 1998 to 7 November 2000. He filed an original disability claim that was received on 13 December 2019 and was awarded 70 percent for generalized anxiety disorder and 10 percent for disc prolapse. The VA awarded the 70 percent for the anxiety disorder based on: * suspiciousness * depressed mood * disturbances of motivation and mood * impaired judgment * mild memory loss * impaired impulse control * chronic sleep impairment * near-continuous panic affecting the ability to function independently, appropriately, and effectively * obsessional rituals which interfere with routine activities * panic attacks (weekly) * difficulty in adapting to stressful circumstances * difficulty in adapting to work * inability to establish and maintain effective relationships * impairment of short- and long-term memory * flattened affect * intermittent inability to perform maintenance of minimal personal hygiene * difficultly in adapting to a work like setting * anxiety g. A letter from the VA, dated 12 August 2020, which shows the applicant was in the Army and received an under honorable conditions (general) discharge and had a combined service connected disability of 70 percent. 4. On 21 June 1997, the applicant, at the age of 17 years old, enlisted in the US Army Reserve (USAR) delayed entry program (DEP) for a period of 8 years. There is not evidence of a parental waiver for joining prior to the age of 18 years old. On 10 June 1998, he was discharged from the USAR DEP and entered active duty for a period of 4 years. Along with his enlistment he underwent a Report of Medical Examination, dated 21 June 1997, which shows he had not medical issues and was qualified for enlistment in the Regular Army. 5. The applicant's DA Form 2-1 (Personnel Qualification Record) shows he entered basic training on 26 June 1998 and advanced individual training (AIT) for the military occupational specialty (MOS) of 74C (Telecommunications Operator and Maintainer) on 2021 August 1998. His first duty station was at Fort Campbell, KY. 6. On 29 November 1998, orders were published awarding him the Parachutist Badge effective 11 December 19998 for successful completion of Airborne training. 7. The applicant accepted nonjudicial punishment (NJP) on: a. 23 June 2000, for disobeying a lawful order from a senior noncommissioned officer (NCO) on three occasions and making a false official statement to an NCO. His punishment included reduction to the rank of Private First Class (PFC), forfeiture of $297, and restriction and extra duty for 14 days. He did not appeal his punishment. b. 27 July 2000, a vacation of suspended punishment of reduction to PFC, forfeiture of 297.00 and restriction for 14 days because he was derelict in the performance of his duties. c. 22 August 2000, for violating a lawful general regulation, violating Kentucky Revised Statue, and breaking restriction. His punishment included reduction to Private/E2 (PV2), forfeiture of $563 both suspended, and extra duty for 14 days. He did not appeal his punishment. d. 20 October 2000, a vacation of suspended punishment of reduction to PV2 and forfeiture of $563 was vacated for the applicant disobeying a lawful order from a senior NCO. e. 23 October 2000, for disobeying a lawful order from a senior NCO, disobeying a lawful order from a commissioned officer, and wrongful appropriation of military property. His punishment included reduction to PVT, suspended, and extra duty and restriction for 14 days. He did not appeal his punishment. 8. The applicant received two Developmental Counseling forms on: a. 9 August 2000, however, the information he was counseled on was not available for the Board's review. The applicant agreed with the counseling and signed the form. b. 25 October 2000, to advise him of his pending administrative separation for acts or patterns of misconduct. The applicant agreed with the counseling and signed the form. 9. On 11 October 2000, he underwent a Report of Mental Status Evaluation for separation action. He was psychiatrically cleared for any administrative action deemed appropriate by his command. 10. On 20 October 2000, he underwent a Report of Medical Examination, which shows he was qualified for retention or separation processing. His Report of Medical History shows he had swollen or painful joints and sexually transmitted diseases. He does not indicate he had any mental health issues. 11. On 27 October 2000, the applicant's commander advised the applicant of his intent to separate the applicant, per paragraph 14-12b (A Pattern of Misconduct), chapter 14 (Separation for Misconduct), Army Regulation 635-200 (Personnel Separations). The commander informed the applicant he intended to recommend the applicant for an under honorable conditions (general) discharge, but the final decision rested with the separation authority. The applicant acknowledged receipt of the initiation of separation on 27 October 2000. The reasons for this proposed action were: a. On or about 23 June 2000, he received NJP for disobeying a lawful order and false official statement. b. On 27 July 2000, he received a vacation of his suspended punishment for dereliction of duty. c. On 23 August 2000, he received NJP for disobeying a lawful general regulation, violating Kentucky Revised Statute, and breaking restriction. d. On 20 October 2000, he received a vacation of his suspended punishment for failing to obey a lawful order. e. On 25 October 2000, he received NJP for disobeying a lawful order, disobeying a lawful written order, and wrongful appropriation. 12. On 27 October 2000, after consulting with counsel, the applicant acknowledged counsel had advised him of the basis for the separation action, the applicant's rights in the separation process, and the effect of waiving those rights. The applicant elected not to submit a statement on his own behalf. On 30 October 2000, the applicant waived the right to a seven-day waiting period before chapter proceedings began. 13. The applicant's chain of command recommended approval of the separation with an under honorable conditions (general) characterization of discharge. On 31 October 2000, the appropriate approval authority approved the applicant's separation and direct he be issued an under honorable conditions (general) discharge. 14. On 7 November 2000, he was discharged accordingly. His DD Form 214 shows he completed 2 years, 4 months, and 28 days of active duty service. He had not completed his first full term of service. He was awarded or authorized the Army Service Ribbon and Parachutist Badge. 15. The applicant states he and his 1SG did not get along and he got in trouble for everything he did. He was under investigation for possession of child pornography; however, he never had any. Soldiers went into his room, while he was deployed, and that's when they supposedly found the child pornography. a. The applicant provides medical documentation showing he had suicidal ideations on at least one occasion, while he was in the service. He has since received 70 percent service-connected disability for generalized anxiety disorder, with major depressive disorder, severe, recurrent. b. There was no evidence he was ever under investigation for the possession of child pornography. He received NJP on five occasions. c. During the applicant's era of service, commanders could initiate separation action, under paragraph 14-12b, Army Regulation 635-200, against Soldiers who displayed a pattern of misconduct consisting solely of minor military disciplinary infractions. d. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part of 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 existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. e. The Office of the Undersecretary of Defense for Personnel and Readiness provides guidance that 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, Traumatic Brain Injury (TBI), post- traumatic stress disorder (PTSD), sexual harassment and sexual assault. The veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. f. The Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 16. MEDICAL REVIEW: a. The applicant is applying to the Army Board for Correction of Military Records (ABCMR) for an upgrade his under honorable conditions (general) discharge to honorable. b. The ABCMR Behavioral Health (BH) Advisor was asked to review this case. Documentation reviewed includes the documented listed above, under Applicant's Supporting Documents. c. VA electronic medical record, Joint Legacy Viewer (JLV) was reviewed. d. 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. e. The ABCMR 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 21 June 1997 and was discharged on 7 November 2000 with a General Discharge. f. The applicant accepted nonjudicial punishment (NJP) on: g. 23 June 2000, for disobeying a lawful order from a senior noncommissioned officer (NCO) on three occasions and making a false official statement to an NCO. He did not appeal his punishment. h. 27 July 2000, a vacation of suspended punishment of reduction to PFC, forfeiture of 297.00 and restriction for 14 days because he was derelict in the performance of his duties. i. 22 August 2000, for violating a lawful general regulation, violating Kentucky Revised Statue, and breaking restriction. He did not appeal his punishment. j. 20 October 2000, a vacation of suspended punishment of reduction to PV2 and forfeiture of $563 was vacated for the applicant disobeying a lawful order from a senior NCO. k. 23 October 2000, for disobeying a lawful order from a senior NCO, disobeying a lawful order from a commissioned officer, and wrongful appropriation of military property. He did not appeal his punishment. l. On 11 October 2000, he underwent a Report of Mental Status Evaluation for separation action. He was psychiatrically cleared for any administrative action deemed appropriate by his command. m. On 20 October 2000, he underwent a Report of Medical Examination, which shows he was qualified for retention or separation processing. His Report of Medical History shows he had swollen or painful joints and sexually transmitted diseases. He does not indicate he had any mental health issues. n. On 27 October 2000, the applicant's commander advised the applicant of his intent to separate the applicant, per paragraph 14-12b (A Pattern of Misconduct), chapter 14 (Separation for Misconduct), Army Regulation 635-200 (Personnel Separations). The commander informed the applicant he intended to recommend the applicant for an under honorable conditions (general) discharge, but the final decision rested with the separation authority. o. On or about 23 June 2000, he received NJP for disobeying a lawful order and false official statement. p. On 27 July 2000, he received a vacation of his suspended punishment for dereliction of duty. q. The applicant states he and his 1SG did not get along and he got in trouble for everything he did. He was under investigation for possession of child pornography; however, he never had any. Soldiers went into his room, while he was deployed, and that's when they supposedly found the child pornography. r. The applicant provides medical documentation showing he had suicidal ideations on at least one occasion, while he was in the service. He has since received 70 percent service-connected disability for generalized anxiety disorder, with major depressive disorder, severe, recurrent. s. There was no evidence he was ever under investigation for the possession of child pornography. t. JLV contains Behavioral Health diagnoses of Anxiety and Depressive disorders. u. The applicant is 70% service connected for Neurosis, Generalized Anxiety Disorder. v. After reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, it is the opinion of the Agency Behavioral Health advisor that the applicant has a partially mitigating BH diagnosis of Generalized Anxiety Disorder (GAD). The applicant met retention standards at the time of discharge. The applicant has a service connection of 70% for GAD. Under liberal guidance, GAD is a mitigating factor for his dereliction of duty as this is part of the normal sequela of GAD. Disobeying lawful orders, making false statements, breaking restriction, and wrongful appropriation of military property are not related to the DSM 5 symptoms of GAD and are therefore not mitigated. 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 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, the frequency and nature of his misconduct and the reason for his separation. The Board considered the applicant's 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 regarding his misconduct not being mitigated by all his conditions. The applicant has a service connection of 70% for Generalized Anxiety Disorder. Under liberal guidance, this disorder is a mitigating factor for his dereliction of duty as this is part of the normal sequela of the disorder. However, disobeying lawful orders, making false statements, breaking restriction, and wrongful appropriation of military property are not related to the symptoms of this disorder and are therefore not mitigated. 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 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. 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 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, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. a. An honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Paragraph 14-12b stated members were subject to separation under this provision when they showed a pattern of misconduct involving acts of discreditable involvement with civil or military authorities, and/or displayed conduct that was prejudicial to good order and discipline. 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; 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. 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. 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, 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. 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) AR20210006298 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1