IN THE CASE OF: BOARD DATE: 13 January 2022 DOCKET NUMBER: AR20210009539 APPLICANT REQUESTS: In effect, that his under other than honorable conditions (UOTHC) discharge be upgraded because he needs medical care for combat-related post-traumatic stress disorder (PTSD). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 25 March 2021 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code (USC), 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 needs an upgrade to get help for his combat-related PTSD. 3. The applicant enlisted in the Regular Army on 17 August 2006. 4. The applicant’s service record contains the following documentation: a. DA Form 7569 (Investigator Activity Summary), dated 21 March 2007, which shows the Military Police Investigator’s (MPI) Final Report and findings from an investigation into the applicant’s larceny and use of his noncommissioned officer's (NCO) debit card. The card was stolen from the NCO’s privately owned vehicle (POV), while the applicant was a passenger, on 19 March 2007. The applicant confessed to the investigator on 21 March 2007. b. DA Form 4856 (Developmental Counseling Form), which shows he was counseled on 22 March 2007 for larceny on 19 March 2007; deliberately lying on several occasions to different NCOs on 20 March 2007; and lying to his company commander on 21 March 2007. 5. The applicant accepted non-judicial punishment (NJP) on 18 April 2007, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for stealing money in the value of $159.82 from his NCO [via the stolen debit card], between on or about 18 March 2007 and 20 March 2007. 6. The applicant’s Enlisted Record Brief shows he served in Iraq from 20 September 2008 through 20 August 2009. 7. The applicant’s service record contains a U.S. Army Criminal Investigation Command (CID) Report of Investigation (ROI) - Final Copy, dated 25 October 2010, which shows the applicant was investigated after his commander notified CID on 1 December 2009 that the applicant was in possession of child pornography on his personal computer. The investigation determined the applicant committed the following offenses: * transportation, possession, and distribution of child pornography, when he knowingly downloaded images and movies containing child pornography to his personal laptop computer utilizing the LimeWire computer program * providing a false official statement when he told CID he did not have child pornography on his Apple IPod; later a forensic examination determined his IPod did contain child pornography 8. The applicant underwent a separation mental status evaluation on 20 April 2011. The relevant DA Form 3822-R (Report of Mental Status Evaluation) shows the following: * he was fit for full duty, including deployment * he could understand and participate in administrative proceedings * could appreciate the difference between right and wrong * met medical retention requirements * Diagnosis: AXIS 1 - Adjustment disorders with disturbance of conduct; AXIS II - Deferred; AXIS III - Deferred * he was screened for PTSD and mild Traumatic Brain Injury (TBI); all screenings were negative, and not present or did not meet Army Regulation 40-501 requirements for a medical evaluation board * he was cleared for administrative separation 9. The applicant underwent a separation examination on 4 May 2011. a. The relevant DD Form 2807 (Report of Medical History) shows he indicated high frequency hearing loss; right shoulder surgery; a prior history of high blood pressure that had subsided; he was not taking any medications; and he was in good health. b. The relevant DD Form 2808 (Report of Medical Examination), shows the examining physician noted his previous high frequency hearing loss; high blood pressure; and right shoulder surgery. He recommended the applicant continued to wear hearing protection and follow up for routine care. There were no indications of PTSD or other mental health ailments noted at that time and he was determined to be qualified for separation. 10. The applicant's immediate commander notified the applicant on 3 June 2011 of his intent to initiate actions to separate him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, by reason of his commission of a serious offense. The commander cited the applicant's possession of child pornography. He recommended the applicant receive a UOTHC discharge. The applicant acknowledged the commander’s intent the same day. 11. The applicant consulted with counsel on 8 June 2011. He unconditionally waived his rights to an administrative board. He acknowledged his understanding that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He further understood that as the result of the issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and he may expect to encounter substantial prejudice in civilian life. He understood that if he received a discharge/character of service that was less than honorable, he could make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however, an act of consideration by either board did not imply his discharge would be upgraded. He elected not to submit a statement in his own behalf. 12. The applicant's commander formally recommended his separation on 8 June 2011, under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of his misconduct – commission of a serious offense. He again cited the applicant's possession of child pornography. He opined that it was not feasible or appropriate to accomplish any other disposition because of the seriousness of the charges. 13. The applicant's intermediate level commanders recommended approval of his separation with a UOTHC discharge. They both noted the applicant was ineligible for transfer to the Inactive Ready Reserve (IRR). 14. The separation authority directed the applicant be separated prior to his expiration of current term of service, on 19 July 2011, under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – commission of a serious offense. He again noted the applicant was ineligible for transfer to the IRR and further directed he receive a UOTHC discharge. 15. The applicant was discharged on 3 August 2011. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – serious offense. His service was characterized as UOTHC. 16. The applicant's record is void of documentation showing he suffered from or was treated for PTSD or other mental health issues. His service records shows he was treated as annotated above. 17. The applicant petitioned the ADRB for an upgrade of his discharge. The ADRB considered his petition and denied his request on 8 May 2013. 18. The Board should consider the applicant's statement in accordance with the published equity, injustice, and clemency determination guidance. 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, including PTSD. The Veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience may have existed during or might have been aggravated by military service, and that the condition or experience may excuse or mitigate the discharge. 19. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. a. A review of the Armed Forces Health Longitudinal Technology Application (AHLTA), Federal Electronic Health Record (FEHR) & Health Artifacts Image Solutions (HAIMS) indicates he was seen on 1 January 2009 as a self-referral. He stated that “I lie and do not realize it until it’s too late.” His chain of command also encouraged him to seek help after finding child pornography on his computer twice. He reported lying for as long as he could remember. He reported intense anxiety whenever he is “placed on the spot” and in any setting when he is in front of a group of people. He reported receiving an Article 15 for stealing another Soldier’s credit card and charging $150.00. The applicant reported it was an “act of vengeance.” He was diagnosed with Social Phobia and Depression. He had 2 follow-up appointments and did not return to behavioral health until 7 December 2009. He reported being on unit watch but denied knowing why. On 11 December 2009, he stated he was on unit watch due to being investigated by CID for child pornography. b. On 20 January 2010, he was diagnosed with Adjustment Disorder. On 26 January 2010, he was diagnosed with Anxiety Disorder, not otherwise specified (NOS). He did not follow-up for treatment. c. On 28 April 2010, he was seen for a command directed behavioral health evaluation for child pornography usage and was facing chapter for theft of a boat. He was diagnosed with Occupational Problem and Antisocial Personality traits. On 21 January 2011, he self-referred for treatment stating his mother urged him to seek help. He reported increased stress due to investigation into his use of child pornography. He was diagnosed with Adjustment Disorder with Disturbance of Emotions and Conduct. d. On 11 March 2011, he reported situational stressors but stated “honestly sir, now that I am getting out I am doing much better.” He stated he could “go back to driving trucks which is what I love.” He was facing jail time but took the offer for other than honorable. On 20 April 2011, he was seen for a mental status evaluation for chapter 14 separation. His diagnosis of Adjustment Disorder was confirmed. He met retention standards and was cleared for administrative action. He also completed a separation physical and met retention standards. e. The applicant asserts he has PTSD but did not provide any medical documentation for review. f. There is documentation to support a behavioral health diagnosis at the time of his discharge. He met retention standards at the time of his discharge. Adjustment Disorder is not a mitigating factor for the misconduct that led to his discharge. In addition, even if medical documentation of PTSD is subsequently provided, PTSD is not a mitigating factor for the misconduct that led to his discharge. 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 regarding his misconduct not being mitigated by PTSD or any other behavioral health condition. 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 three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. This regulation provides that: 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. 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, conviction by civil authorities, desertion, or absences without leave. 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 UOTHC discharge is normally considered appropriate. However, the separation authority may direct a general discharge if merited by the Soldier's overall record. 3. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR), on 3 September 2014 [Hagel Memorandum], to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged UOTHC 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. The Acting Principle Deputy Under Secretary of Defense (Personnel and Readiness) provided clarifying guidance to Service DRBs and Service BCM/NRs on 24 February 2016 [Carson Memorandum]. The memorandum directed the BCM/NRs to waive the statute of limitations. Fairness and equity demand, in cases of such magnitude that a Veteran's petition receives full and fair review, even if brought outside of the time limit. Similarly, cases considered previously, either by DRBs or BCM/NRs, but without benefit of the application of the Supplemental Guidance, shall be, upon petition, granted de novo review utilizing the Supplemental Guidance. 5. The Under Secretary of Defense (Personnel and Readiness) provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017 [Kurta Memorandum]. The memorandum directed them to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating 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. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 6. The Under Secretary of Defense (Personnel and Readiness) issued guidance to Service DRBs and Service BCM/NRs on 25 July 2018 [Wilkie Memorandum], 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. 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, Boards 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) AR20210009539 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1