IN THE CASE OF: BOARD DATE: 14 December 2021 DOCKET NUMBER: AR20210008621 APPLICANT REQUESTS: upgrade of his general discharge to a fully honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Department of Correction - Authorization for Release of Protected Health Information 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 at the time of his discharge, he should have been diagnosed with post-traumatic stress disorder (PTSD). He noticed a change in his behavior after he returned from Iraq. He brought it to the attention of his commander but his condition went undiagnosed. He asks the Board to contact the Oklahoma Department of Correction which will show his history and behavior since his condition got diagnosed. 3. Review of the applicant's service records shows: a. He enlisted in the Regular Army (RA) on 13 July 2000 and he held military occupational specialties 92Y (Supply Specialist). b. He served in Iraq from 10 April 2003 to 9 April 2004. He then reenlisted in the RA on 25 August 2004 while stationed at Fort Hood, TX. c. He was frequently counseled by members of his chain of command for a variety of infractions including: * multiple instances of failing to show to formation, physical training, or work call * driving under the influence * suspension of his driving privileges * failing to obey orders and/or regulation * breaking restriction * multiple instances of failing to be at his appointed place of duty * misuse of government credit card * communicating a threat to a private on multiple occasions * leaving a military vehicle unsecure * leaving appointed place of duty without being properly relieved d. On 16 December 2004, he accepted nonjudicial punishment (NJP) under Article 15 for twice failing to be at his appointed place of duty, wrongfully appropriating a vehicle (property of another Soldier), and failing to obey an order. His punishment consisted of a reduction to specialist/E-4, forfeiture of pay, and extra duty and restriction. e. On 16 March 2005, the applicant's immediate commander notified the applicant of his intent to separate him under the provisions of AR 635-200 (Active Duty Enlisted Administrative Separations), Chapter 14, paragraph 12b, for pattern of misconduct. The reasons for the proposed action are as follows: failed to go at the time prescribed to your appointed place of duty, wrongfully appropriated a vehicle, failed to obey an order, failed to go at the time prescribed to your appointed place of duty, and broke restriction. The commander recommended he receive a general discharge. He advised him of his rights, and that separation authority is not bound by his recommendation as to characterization of service. f. The applicant acknowledged receipt of the notification memorandum. He consulted with counsel who advised him of the basis for the contemplated action to separate him for misconduct, serious offense, under AR 635-200, Chapter 14-12b and its effects; of the rights available to him; and the action taken by him in waiving his rights. He requested consideration of his case by and administrative separation board but he was not entitled to one because he did not have at least 6 years of military service. He elected to submit a statement on his behalf (not available) and acknowledged: * he understood that he may expect to encounter substantial prejudice in civilian life if a General Discharge under Honorable conditions is issued to him * he further understood that, as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for the benefits of both Federal and State laws and expect to encounter substantial prejudice in civilian life * he understood that if he received a discharge/character of service, which is less that honorable, he may make application to the Army Discharge Review Board of the Army Board for Correction of Military Records for upgrading; however, he understood that an act of consideration by either board does not imply that his discharge will be upgraded g. Following this acknowledgement, the commander initiated separation action against the applicant for misconduct in accordance with AR 635-200, paragraph 14-12b. His intermediate commander recommended approval. h. The separation authority approved the applicant's administrative discharge and ordered him separated from the U.S. Army under the provisions of AR 635-200, Chapter 14, Paragraph 14-12b, for patterns of misconduct and will receive a general, under honorable conditions discharge. i. The applicant was discharged from active duty on 4 May 2005. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with paragraph 14-12b of AR 635-200 with an under honorable conditions (general) discharge. He completed 4 years, 8 months, and 27 days of active service. His DD Form 214 further shows in: (1) Block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized): * Army Lapel Button * Army Commendation Medal * Global War on Terrorism Service Medal * Iraq Campaign Medal * National Defense Service Medal * Army Service Ribbon (2) The Remarks Block listed his immediate reenlistment 20000713-20030824 and that he completed his first term of service; but did not list his continuous honorable service. j. On 17 October 2008, after careful review of your application, military records and all other available evidence, the ADRB determined that he was properly and equitably discharged. Accordingly, his request for a change in the character and/or reason of his discharge is denied. k. On 24 August 2021, a staff member of the Army Review Boards Agency dispatched a letter to the applicant informing him that in order for the Army Board for Correction of Military Records (ABCMR) to consider his application, he must provide a copy of the medical documents that support his issue of PTSD. However, the applicant did not respond. 4. By regulation (AR 635-200), Soldiers are subject to separation under the provisions of paragraph 14-12c of AR 635-200 for misconduct, serious offense, or 14-12b for pattern of misconduct. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier s overall record. 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. By regulation (AR 635-8), for item 18 (Remarks) Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable”, enter “Continuous Honorable Active Service from” (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). 8. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The Armed Forces Health Longitudinal Technology Application (AHLTA), Federal Electronic Health Record (FEHR) & Health Artifacts Image Solutions (HAIMS) were not in use at the time of his service. His hardcopy medical record was not available for review. The applicant asserts his PTSD was a factor in his misconduct. A review of JLV indicates the applicant has received medical care at the VA since December 2007. He was diagnosed with Adjustment Disorder on 30 Jan 2008 due to difficulty readjusting to live outside of prison after serving 2 years for assault and battery. On 14 Feb 2008, he was diagnosed with Alcohol Abuse and Cocaine Abuse, both in full remission. The provider noted he did not have any psychiatric problems at the time of the evaluation. On 27 Mar 2008, he was seen for stress due to relationship problems with his father. He was diagnosed with Relational Problems, not otherwise specified. He does not have a service connected disability rating. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is no documentation to support a behavioral health diagnosis at the time of his discharge. There is no documentation to suggest he did not meet retention standards at the time of his discharge. There is no documented psychiatric condition to consider with respect to mitigation of the misconduct that led to his discharge. If subsequent documentation of a PTSD diagnosis was provided, it would not be considered a mitigating factor for wrongful appropriating a vehicle nor misuse of a government credit card. 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 any documented psychiatric condition to consider with respect to mitigation of the misconduct that led to his discharge. 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. ADMINISTRATIVE NOTE(S): A review of the applicant’s records shows his DD Form 214 omitted administrative entries in the Remarks block. As a result, amend the DD Form 214 by adding in item 18 the entry “Continuous honorable service 20000713-20030824.” 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 Separation), currently in effect, sets forth the basic authority for the separation of enlisted personnel. a. An honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. 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 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. 3. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable”, enter “Continuous Honorable Active Service from” (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). 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// ABCMR Record of Proceedings (cont) AR20210008621 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1