IN THE CASE OF: BOARD DATE: 3 December 2021 DOCKET NUMBER: AR20210007406 APPLICANT REQUESTS: correction to his 1994 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show an honorable character of service and his separation code changed to "BFY Adjustment Disorder." APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal statement FACTS: 1. The applicant did not file within the 3-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, in effect, his case is an example of when liberal consideration by the ABCMR should be applied when reviewing his case file due to post-traumatic stress disorder (PTSD). He states his chain of command failed to understand nor were they concerned with his mental, emotional or physical stability when he was stationed at Fort Bliss, Texas. On his DD Form 149 he states, in effect, that he was a model Soldier. During his basic training he served as his platoon’s flag bearer. Within his personal statement he continues stating, in effect: a. When he reached his duty station he experienced multiple life events that derailed his military career. Some of his experiences included his spouse committing adultery with another Soldier who was senior in rank to him. He reported this fact to his senior noncommissioned officer (NCOIC) and platoon leader. He was informed they would help him get legal and personal counseling. His two superiors failed to follow through with their commitment to get him help. When he questioned his NCOIC, he just said that he was working on it! b. He was injured during a training exercise at the National Training Center, Fort Irwin, California. He injured his back when the center beam in a medium tent fell on him during a wind storm. He reported his injury to his NCOIC who dismissed him. However, his back continued to hurt him and he requested permission to go on sick call. His request was denied. He did stretching exercises trying to relieve his back pain. When his unit returned to its home station, he sought medical treatment. The military medical doctors could not determine what was wrong with his back. He took a leave of absence and went home. His Dad took him to a specialist who after his evaluation diagnosed him with a bulging disk. He returned to duty with his new medical information. His NCOIC did not honor his civilian doctor’s recommendation to limit his physical activity. His NCOIC said a diagnosis must come from a military medical provider. c. When he realized he did not have the support of his chain of command he requested a reassignment to another post to be closer to home. His NCOIC had to initially approve his request for a transfer/reassignment. In a meeting his NCOIC said no one was going anywhere and he did not want to see his paperwork. His knows his NCOIC was a drinker because he smelled of whiskey. d. He felt demoralized and oppressed. He began to drink which led to his adjustment issues. His first sergeant thought his adjustment issues were acts of misconduct. His first sergeant counseled him and he had an opportunity to share his experiences in his platoon. He thought his first sergeant would help him, but he did not help. He felt more demoralized and oppressed. He received nonjudicial punishments for misconduct and then chapter paperwork was started to discharge him. e. Post service he has tried to get his life back together. He did not receive his education benefits. He was not able to enlist in the U.S. Army Reserve or the Army National Guard of the United States because of his reenlistment code. In 2002, he received a degree in engineering. He has experienced the birth of his children and his grandchildren. At the time of his application he was working at a Department of Veterans Affairs (VA) medical center and was considering pursuing a new career in nursing. 3. The applicant’s personnel service records show: a. After a brief period in the U.S. Army Reserve Delayed Entry Program, he was discharged and enlisted in the Regular Army on 10 June 1992 for a 4-year period of service. He successfully completed his required training meeting the qualifications for food service specialist. b. On or about 6 November 1992 he reported to Fort Bliss and was assigned to a unit. c. On 12 January 1993 he was advanced to private/pay grade E-2. He was then advanced to private first class (PFC)/pay grade E-3 on 19 June 1993. d. He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) as follows: * on 7 February 1994, for attempting to give stolen checks to his brother, who in turn deposited them into his account with forged signatures; part of his sentence included reduction to PV2/E-2 * on 16 May 1994, during a summarized Article 15, UCMJ for making a false official statement and for assault consummated by battery; part of his sentence included reduction to PV1/E-1 * on 16 May 1994, during a summarized Article 15, UCMJ for failure to be at his appointed place of duty e. His personnel record does not contain general counseling forms showing he was counseled by his chain of commander. His service treatment records are not filed within his personnel record. Therefore, the Board presumes an assumption of administrative regularity that he underwent a medical and psychological examination as required by regulation. f. By memorandum, the applicant’s company commander informed him he was initiating action to separate him from service for commission of a serious offense under Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14- 12c (Commission of a Serious Offense). The offenses noted in the memorandum were the three aforementioned NJPs, being disrespectful toward an NCO and failure to pay his debts on time. He advised him that he was recommending the separation authority consider issuing him a General Discharge Certificate. He was informed of his rights to consult with counsel, submit statements, obtain copies of all documents, and to waive his rights in writing. He was provided a copy of the memorandum and told he had 7 duty days to make his election and/or submit a rebuttal statement. g. On 9 June 1994, he acknowledged with his signature receipt of his separation notification and its supporting documents. He consulted with counsel and was advised of the contemplated action to separate him from service for his acts of misconduct. He was advised of the types of discharges he could receive and its effect on further enlistment or reenlistment, the possible effects of his discharge, and the rights available to him. He declined to submit a statement on his behalf. He acknowledged he understood: * he could expect to encounter substantial prejudice in civilian life, if a general discharge under honorable conditions was issued to him * understood he could be ineligible for many or all benefits as a Veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions * understood if he received a discharge characterization of less than honorable, he could make an application to the Army Discharge Review Board or the ABCMR for an upgrade Subsequent to this acknowledgement and consultation with counsel, his immediate commander initiated separation action against him due to commission of serious offenses (misconduct) in accordance with Army Regulation 635-200, paragraph 14-12c. i. His intermediate commander recommended his separation prior to his expiration of term of service (ETS) date with issuance of a General Discharge Certificate. j. The separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200, paragraph 14-12c. He directed the applicant receive a service characterization of under honorable conditions (general) and furnished a General Discharge Certificate. k. On 23 June 1994 Fort Bliss personnel issued him Orders 116-12 discharging him from the Regular Army effective 30 June 1994. l. On 30 June 1994 as ordered he was discharged and issued a DD Form 214 documenting his Regular Army service. He had completed 2 years and 12 days of net active service this period. His DD Form 214 contains the following pertinent entries: * Block 23 (Type of Separation) – discharge * Block 24 (Character of Service – "under other than honorable conditions" * Block 25 (Separation Authority) – Army Regulation 635-200, paragraph 14-12c * Block 26 (Separation Code) – "JKQ" * Block 27 (Reentry Code) – "3" * Block 28 (Narrative Reason for Separation) – misconduct m. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his character of service. The ADRB reviewed his discharge on 6 November 1998 determining he was improperly discharged with an under other than honorable conditions character of service. The separation authority had approved the applicant’s discharge with a general, under honorable conditions character of service. The ADRB determined someone within the administrative discharge process improperly changed his character of service. The ADRB granted his request to recharacterize his discharge. n. His original DD Form 214, showing in Block 24 his character of service as "under other than honorable conditions," was voided. A new DD Form 214 was prepared and authenticated by a staff member of the Army Review Boards Agency. This DD Form 214 shows in Block 24 "under honorable conditions (general)." In Block 18 (Remarks) it shows in pertinent part, "Discharge upgraded on 6 Nov [November] [19]98 following application dated 1 Nov [November] [19]97." 4. On 25 August 2017 the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including post-traumatic stress disorder; traumatic brain injury; sexual assault; or sexual harassment. 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. A diagnosis made by a licensed psychiatrist or psychologist that the mental health condition existed during military service will receive liberal consideration. A determination made by the VA that an applicant’s mental health condition is connected to military service is persuasive evidence that the condition existed or experience occurred during military service. a. Evidence of misconduct, including any misconduct underlying a Veteran’s discharge, may be evidence of a mental health condition. Evidence may come from sources other than the Veteran’s service record including statements from family members, friends, roommates, co-workers, or clergy. A Veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experiences existed during or was aggravated by military service, and that the condition or experiences excuses or mitigate the discharge. b. Mental health conditions inherently affect one’s behaviors and choices causing Veterans to think and behave differently than might otherwise be expected. Veterans may have difficulty presenting a thorough appeal for relief because of how the asserted condition or experience has impacted their life. Premediated misconduct is not generally excused by mental health conditions. Review Boards will exercise caution in assessing the casual relationship between asserted conditions or experiences and premediated misconduct. 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. An honorable discharge characterization does not require flawless military service. The relative severity of some misconduct can change over time, thereby changing the relative weight of the misconduct to the mitigating evidence in a case. Finally, liberal consideration does not mandate an upgrade. Relief may be appropriate for minor misconduct commonly associated with mental health conditions. 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 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. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 6. On 19 April 2021 a staff member of the Army Review Boards Agency sent the applicant a letter requesting he submit medical documents supporting his contention he has service related PTSD symptoms. He was informed he had 30 days to comply with the agency request for his medical records. He did not respond. 7. He stated he has a behavioral health medical condition of PTSD. Based on his contention, the Army Review Boards Agency behavioral health medical advisor provided a medical advisory. See "Medical Review." 8. Title 10, USC, section 1552(h), states: a. It applies to a former member of the armed forces whose claim under this section for review of a discharge or dismissal is based in whole or in part on matters relating to post-traumatic stress disorder or traumatic brain injury as supporting rationale, or as justification for priority consideration, and whose post-traumatic stress disorder or traumatic brain injury is related to combat or military sexual trauma, as determined by the Secretary concerned. b. In the case of a claimant, a board established under this title shall review medical evidence of the Secretary of Veterans Affairs or a civilian health care provider that is presented by the claimant; and review the claim with liberal consideration to the claimant that PTSD or traumatic brain injury potentially contributed to the circumstances resulting in the discharge or dismissal or to the original characterization of the claimant’s discharge or dismissal. 9. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. SPD "BYF Adjustment Disorder" is an invalid or unauthorized SPD code and it is not identified within this regulation. (The applicant requested correction to his DD Form 214 to show his SPD code as "BYF Adjustment Disorder.") 10. MEDICAL REVIEW: a. 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: Documentation is void of a behavioral health condition for consideration. Accordingly, even while liberal consideration was applied, there is insufficient information to make a determination; an upgrade is not supported. Of note, if the applicant had provided documentation for an Adjustment Disorder, this would not mitigate any of the offenses. Moreover, if the applicant had provided documentation for PTSD, this would not mitigate the serious offenses of stealing checks, forging signatures, assault consummated by battery and related false official statement, and failing to pay debts; an upgrade would not have been recommended. b. The applicant was discharged on 30 June 1994 under Chapter 14-12c, Misconduct – Commission of a Serious Offense, with an Under Other than Honorable characterization. Of note, in 1998 the Army Discharge Review Board (ADRB) upgraded the applicant to a General characterization. The basis for separation was in November 2003 the applicant gave stolen checks to his brother and forged the owner’s signatures, after which the applicant’s brother attempted to deposit the checks; in May 1994 the applicant made a false official statement that he did not assault another Soldier; the applicant assaulted another Soldier, consummated by battery, when he hit another Soldier in the back of the head with a closed fist; in May 1994 the applicant did not report to PT formation; the applicant was disrespectful to a NCO, and he failed to pay debts on time. The applicant is requesting an Honorable characterization with a separation code of Adjustment Disorder; this equates to the current Chapter 5-17, Condition not a Disability. While the applicant indicated “I am an example of liberal consideration for PTSD,” the body of his statements is based on his assertion he was experiencing an Adjustment Disorder which was misinterpreted as misconduct. c. The applicant applied to the ADRB in 1998 for an upgrade. The Board granted an upgrade to General noting a separation authority had approved a General characterization; there was a possibility another entity “improperly changed” the characterization. d. Due to the period of service, electronic active duty medical records are void. e. While eligible for VA services, the applicant is not service connected nor does he have treatment notes. Rather there are six encounters related to employment physicals. BOARD DISCUSSION: 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, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the medical records and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct, and no reason to change the separation code. The applicant provided no evidence of post-service achievements or letters of reference in support of 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. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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, 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. Title 10, USC, section 1552(h), states: a. It applies to a former member of the armed forces whose claim under this section for review of a discharge or dismissal is based in whole or in part on matters relating to post-traumatic stress disorder or traumatic brain injury as supporting rationale, or as justification for priority consideration, and whose post-traumatic stress disorder or traumatic brain injury is related to combat or military sexual trauma, as determined by the Secretary concerned. b. In the case of a claimant, a board established under this title shall review medical evidence of the Secretary of Veterans Affairs or a civilian health care provider that is presented by the claimant; and review the claim with liberal consideration to the claimant that post-traumatic stress disorder or traumatic brain injury potentially contributed to the circumstances resulting in the discharge or dismissal or to the original characterization of the claimant’s discharge or dismissal. 3. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR under the provisions of Title 10, U.S. Code, section 1552. The ABCMR members will direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 5, Section II (Secretarial Authority), states the separation of enlisted personnel for the convenience of the government is the prerogative of the Secretary of the Army. b. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for misconduct. c. 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. d. 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. 5. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. * SPD JKQ is the code for Soldiers separating under paragraph 14-12c of Army Regulation 635-200 by reason of misconduct. * SPD KFF is the current code for use directed by the service secretary under the provisions of Army Regulation 635-200, Chapter 5, Section Il. * SPD "BYF Adjustment Disorder" is an invalid or unauthorized SPD code. 6. Army Regulation 635-5 (Separation Documents), in effect at the time, established standardized policy for preparing and distributing the DD Form 214. This regulation stated the purpose of the separation document was to provide the individual with documentary evidence of his or her military service at the time of release from active duty, retirement, or discharge. It is important that information entered on the form is complete and accurate and reflects the conditions as they existed at the time of separation. The instructions stated to use the Enlisted Record Brief and orders to verify the entries on the DD Form 214. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210007406 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1