IN THE CASE OF: BOARD DATE: 14 December 2022 DOCKET NUMBER: AR20220005211 APPLICANT REQUESTS: reconsideration of his previous request for upgrade of his under honorable conditions (general) discharge to honorable and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his last name as " " instead of " ". APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Performance Appraisal * DD Form 214 (certificate of Release or Discharge from Active Duty) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2003099545 on 2 September 2004. 2. The applicant states he is married, and his last name has changed. As a new argument, he states that during his military service he suffered Military Sexual Trauma/Post Traumatic Stress Disorder (MST/PTSD), he now believes this was an underlining cause of his misconduct. He has over the years sought and completed therapy for PTSD and MST. He is now functioning positively in his community and is a fulltime employee of the Federal Government with his performance rated as outstanding. 3. He enlisted in the Regular Army on 6 June 1986 for three years. His military occupational specialty was 77F (Petroleum Supply Specialist). His DD Form 4 (Enlistment/Reenlistment Document) shows his last name as " ." 4. He served in Germany from 4 December 1986 through 9 December 1988. 5. The applicant reenlisted in the Regular Army on 18 November 1988, for a period of 3 years and assignment to Fort Carson, Colorado. 6. The applicant was counseled on numerous occasions regarding writing bad checks and his responsibility to redeem the checks he wrote. However, he failed to respond to counseling by his commander and at one point blamed the bad checks on someone else. He subsequently admitted that he had been untruthful and that he had a problem. 7. A Mental Status Evaluation, dated 12 June 1989, shows the applicant was mentally responsible, able to distinguish right from wrong and adhere to the right and had the mental capacity to understand and participate in board proceedings. He was cleared for any administrative action deemed appropriate by command. 8. The applicant's commander notified him on 28 June 1989, that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), paragraph 14-12c for misconduct - commission of a serious offense. As the specific reason he cited the applicant's dishonored checks 9. After consulting with counsel on 28 June 1989, the applicant conditionally waived appearance before an administrative separation board in return for receiving a general discharge. He also elected not to submit a statement in his own behalf and waived representation by counsel as well as a separation physical. 10. The applicant's commander formally recommended his separation from service, under the provisions of Army Regulation 635-200, Chapter 14, for misconduct. He recommended the issuance of a general service characterization. 11. The separation authority approved the recommended discharge on 5 July 1989 and directed the issuance of a General Discharge Certificate. 12. The applicant was discharged on 11 July 1989. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his last name as " ." He was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct - commission of a serious offense. He completed 3 years, 1 month, and 6 days of net active service this period. His characterization of service was under honorable conditions (general). He was awarded or authorized the: Overseas Service Ribbon, Marksmanship Qualification Badge with Rifle Bar (M-16), Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar, and the Army Achievement Medal. 13. On 1 May 1993, the applicant applied for an upgrade of his discharge to the Army Discharge Review Board (ADRB). The ADRB determined that his discharge was both proper and equitable and on 8 December 1995 denied his request. 14. On 19 February 2003, the ADRB acknowledged receipt of the applicant’s application and could not take action since the board had previously heard his case. 15. On 2 September 2004, the ABCMR denied the applicant's request for upgrade of his discharge. The Board determined that the evidence presented did not demonstrate the existence of a probable error or injustice. His request for relief was denied. 16. The applicant's Certificate of Marriage shows his date of marriage as 26 July 2013, with the surname after marriage of " “. The applicant provides his Performance Appraisal from the VA, dated 12 October 2021 with an outstanding performance rating. 17. The DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. 18. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting reconsideration of his previous requests for upgrade of his under honorable conditions (general) discharge to honorable. In this current application, he contends that his misconduct was related to his experience of Military Sexual Trauma (MST) and resultant PTSD. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted in the Regular Army on 6 June 1986; 2) The applicant was counseled on numerous occasions for writing bad checks and his responsibility to rectify the situations; 3) The applicant's commander notified him on 28 June 1989 that he was initiating action to separate with a Chapter 14-12c for writing bad checks; 3) The applicant was discharged on 11 July 1989 with a Chapter 14-12c with characterization of service under honorable conditions (general); 4) The applicant applied for an upgrade of his discharge to the Army Discharge Review Board (ADRB). The ADRB denied his request on 08 December 1995; 5) The applicant reapplied again, but the ADRB could review it because of the date previous application. He was notified on 19 February 2003; 6) On 2 September 2004, the ABCMR again denied the applicant's request for upgrade of his discharge. c. The applicant contends he experienced MST while he was on active service. He asserts this experience contributed his misconduct. There were no available records of the applicant attending behavioral health treatment while on active service. During one of his initial appointments at the VA, the applicant stated he attended multiple individual therapy sessions while on active service. He was provided a mental status evaluation on 12 June 1989 in connection to his upcoming discharge. The applicant was cleared for administrative action. d. A review of JLV, provided evidence the applicant has been actively engaged in behavioral health treatment within the VA system of care since 2018. There were notable discrepancies in the applicant’s report of his military service, his current and history of psychiatric symptoms, and his adherence to treatment protocols. The applicant has a problem list to include the following behavioral health disorders: PTSD, Major Depression, Suicide attempt, and Insomnia. The applicant has a service- connected disability rating of 100% with a 100% rating for PTSD since 22 March 2021. e. Based on the available information, it is the opinion of the Agency BH Advisor the applicant did not have a condition or experience that mitigate his misconduct. The applicant did report experiencing MST, and he is receiving service-connected disability for PTSD. However, the diagnosis of PTSD nor the experience of MST mitigates the offense of repeatedly writing checks with insufficient funds and not rectifying the situation. Kurta Questions: 1. Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant made an assertion of MST and PTSD. He also receives service-connected disability for PTSD related to his MST. 2. Did the condition exist, or experience occur during military service? Yes. The applicant made an assertion of MST that occurred while he was on active service. He also receives service-connected disability for PTSD related to his MST. 3. Does the condition or experience actually excuse or mitigate the discharge? No. In accordance with the liberal consideration memo, the applicant’s contention of MST alone is sufficient to be considered by the board in reaching its final determination. The applicant has also been diagnosed by the VA with PTSD related to MST. However, repeatedly writing checks with insufficient funds and not rectifying the situation is not a natural sequel of MST or PTSD. In addition, MST and PTSD do not affect one’s ability to distinguish right from wrong and act in accordance with the right. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the medical opinion finding the applicant did not have a condition or experience that mitigate his misconduct. The Board recognized the applicant did report experiencing MST, and he is receiving service-connected disability for PTSD. However, the diagnosis of PTSD nor the experience of MST mitigates the offense of repeatedly writing checks with insufficient funds and not rectifying the situation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct. 2. The applicant was discharged for misconduct and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. 3. Additionally, the Board determined the applicant separated from the service in 1989 and his request for a legal name correction to his record is post service 24 years after his discharge. The Board found the evidence presented does not demonstrate the existence of a probable error or injustice. The applicant used the contested name during his entire period of service. The Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 4. The Army has an interest in maintaining the integrity of its records for historical purposes. The information in those records must reflect the conditions and circumstances that existed at the time the records were created. In the absence of evidence that shows a material error or injustice, there is a reluctance to recommend that those records be changed. The applicant is advised that a copy of this decisional document, along with his application and the supporting evidence he provided, will be filed in his official military records. This should serve to clarify any questions or confusion regarding the difference in the name recorded in his military records and to satisfy his desire to have his legal name documented in his military records. Based on the preponderance of evidence, the Board agreed that a reversal on the previous Board’s determinations is not warranted, nor correction to the applicant’s record for a name change. Therefore, relief was denied. 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 Board found 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 to amend the decision of the ABCMR set forth in Docket Number AR2003099545 on 2 September 2004. 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. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. he version in effect at the time provided 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 established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally considered appropriate. However, the separation authority could direct a general discharge if merited by the Soldier's overall record. 2. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers upon retirement, discharge, or release from active-duty service or control of the Active Army. It established standardized policy for preparing and distributing the DD Form 214. The DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. For item 1 (Name) enter the last name, first name, and full middle name or names, if any. 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 Principal 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 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. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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) AR20220005211 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1