IN THE CASE OF: BOARD DATE: 20 August 2020 DOCKET NUMBER: AR20200000431 APPLICANT REQUESTS: The applicant requests the upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim) * VA Disability Service-Connection Decision * VA Disability Benefits Questionnaire (DBQ), Medical Opinion * VA DBQ, Mental Disorders (Other than PTSD and Eating Disorders) * Social Security Administration (SSA) Letter 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 states, in effect, VA has recently recognized that his behavioral health condition (schizophrenia) is related to his military service; as a result, VA has granted him health benefits, but he remains ineligible for VA compensation based on his character of service. He asks the Board to consider the evidence he submits so that he can receive the monetary benefits he greatly needs. 3. The applicant provides a VA disability decision, which reflects VA's recognition that, for treatment purposes only, the applicant's schizophrenia was service-connected; a medical opinion stating it is at least as likely as not that the etiology of the applicant's schizophrenia was incurred or caused by events during the applicant's military service; and a VA DBQ that identifies schizophrenia as the applicant's behavioral health condition and offers such details as the applicant's history, describes symptoms, and provides behavioral observations. The applicant additionally submits a letter from the SSA that gives the applicant's current social security benefits. 4. The applicant's service records show: a. On 24 April 1997, the applicant enlisted into the Regular Army for 3 years; after completing initial training, orders assigned him to Fort Hood, TX, and he arrived on or about 22 August 1997. At some point prior to 8 March 1998, the applicant's chain of command promoted him to private first class (PFC)/E-3. b. On or about 8 March 1998, after he had been drinking and smoking marijuana, the applicant jumped out of a moving car and threatened to jump off an overpass onto a highway. The applicant was brought to Fort Hood's military hospital and, on 9 March 1998, a psychologist rendered a psychiatric evaluation; the psychologist gave the following diagnoses: "Adjustment Disorder" and "R/O Anti-Soc PD." The psychologist opined the applicant had had an acute situational maladjustment, but, at the time of the evaluation, he had only vague suicidal ideations, with no plan or intent. The psychologist prescribed "unit watch" and no access to weapons; in addition, the psychologist recommended follow-up with the mental health clinic and suggested the unit consider the applicant's administrative separation. c. On 11 March 1998, the applicant was admitted into the military hospital because of suicidal ideation and erratic behavior. Medical authority subsequently discharged the applicant from the hospital on 16 March 1998 after issuing an Adjustment Disorder diagnosis; alcohol abuse was listed as an additional diagnoses, along with "Cluster 'B' traits, R/O disorder." Discharge instructions included a follow-up appointment as well as a referral to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP). Also on 16 March 1998, the Chief, Inpatient Psychiatry issued a psychiatric evaluation of the applicant in which he restated the applicant's Adjustment Disorder diagnosis and affirmed his professional opinion that the applicant's "problem will not respond to Command effort at rehabilitation." The psychiatrist recommended the applicant's separation. d. On 27 March 1998, the applicant underwent a separation physical, in which the applicant's suicidal ideations were noted by both the examining physician's assistant and the applicant; on both the applicant's Standard Form (SF) 88 (Report of Medical Examination) and SF 93 (Report of Medical History), the examining physician's assistant indicated the applicant was showing no suicidal ideation at that time. e. On 14 April 1998, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for using disrespectful language toward a sergeant; failing to go to his appointed places of duty at the time prescribed (i.e., sick call on 20 February 1998 and physical training formation on 6 March 1998); being derelict in his duties by failing to be in the physical training uniform at 0530 and in his protective mask and Kevlar helmet at 0900; and making a false official statement to a sergeant. The applicant's punishment included reduction in rank to private (PV2)/E-2. f. On 12 May 1998, the applicant accepted NJP for wrongful use of marijuana and cocaine on 9 March 1998; the imposing official reduced the applicant to private (PV1)/E-1, ordered the applicant to perform 45 days of extra duty, and directed the applicant forfeit $463 per month for 2 months (suspended). On 14 May 1998, the applicant's Fort Hood unit reported the applicant as absent without leave. On 15 May 1998, the NJP imposing officer vacated the applicant's suspended forfeiture. On 13 June 1998, the applicant's unit dropped him from unit rolls. g. On 19 July 1998, civilian authority arrested the applicant and returned him to military control; the applicant was initially sent to the U.S. Army Personnel Control Facility (PCF) at Fort Sill, OK, but then was transferred back to Fort Hood. h. On 22 July 1998, the 1st Cavalry Division Staff Judge Advocate preferred court- martial charges against the applicant for desertion with the intent to permanently remain away, based on the applicant's absence from 14 May until his apprehension on 19 July 1998 (a total of 66 days). On 23 July 1998, after consulting with counsel, the applicant voluntarily, and in writing, requested discharge in-lieu of trial by court-martial, under chapter 10 (Discharge In Lieu of Trial by Court-Martial), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his request, he affirmed no one subjected him to coercion and that counsel had advised him of the implications of his request. He also acknowledged he was guilty of the charge. He elected not to submit a statement in his own behalf. i. On 13 August 1998, the separation authority approved the applicant's request and directed his under other than honorable conditions discharge; he also ordered the applicant's rank reduction to the lowest enlisted grade (the applicant was already a PV1, so his rank did not change). On 21 August 1998, the applicant was discharged accordingly; his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 2 months, and 5 days of his 3-year enlistment, with lost time from 19980514 through 19980613 and 19980722 through 19980812. He was awarded or authorized the Army Service Ribbon and a marksmanship qualification badge. 5. The applicant contends his schizophrenia was a significant and mitigating factor in the behavior that led to his adverse discharge; he submits VA documentation in support of his claim. 6. In reaching its determination, the Board can consider the applicant’s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. 7. Based on the applicant's submission of VA disability documentation, the Army Review Board Agency medical staff provided a medical review for the Board members. See the "MEDICAL REVIEW" section." MEDICAL REVIEW: 1. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. A review of VA’s Joint Legacy Viewer (JLV) indicates he has not received care in the VA system. 2. A review of the applicant’s packet shows he was evaluated on 6 June 2019 and confirmed his diagnosis of schizophrenia and opined that it was at least as likely or not that the etiology of his condition occurred during military service. On 17 June 2019, the applicant was notified that he is eligible for medical care for schizophrenia in the VA system. A review of his service record indicates he was evaluated on 9 March 1998 due to jumping out of a moving car and threatening to jump off the overpass ramp. He was drinking and using drugs (marijuana and cocaine) at the time of the incident. He was hospitalized and diagnosed with Adjustment Disorder. 3. On 13 March 1998, he was evaluated and found to meet retention standards. He was evaluated again on 16 March 1998 and again diagnosed with Adjustment Disorder and Cluster B personality traits with a recommendation for chapter separation. On 27 March 1998, he completed a separation physical and met retention standards. He met retention standards at the time of his discharge. It is likely the applicant was in the prodromal stage of schizophrenia which would have been exacerbated by his alcohol and drug use. Schizophrenia is considered a mitigating factor for the misconduct that led to his discharge. BOARD DISCUSSION: 1. 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 schizophrenia diagnosis and the review and conclusions of the ARBA Medical Advisor. 2. The Board concurred with the conclusion of the ARBA Medical Advisor that the applicant likely was in the prodromal stage of schizophrenia, which is a mitigating factor for the misconduct that led to his discharge. Based on a preponderance of evidence, the Board determined that the applicant's character of service should be upgraded to under honorable conditions (general). BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing his DD Form 214 for the period ending 21 August 1998 to show his service was characterized as under honorable conditions (general). 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. AR 635-200, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. It provides: a. An an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and duty performance. b. Paragraph 3-7b (General Discharge). A general discharge was a separation under honorable conditions, and applied to those Soldiers whose military record was satisfactory, but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 applied to Soldiers who had committed an offense or offenses for which the punishment under the UCMJ included a punitive (i.e. bad conduct or dishonorable) discharge. Soldiers could voluntarily request discharge once charges had been preferred; commanders were responsible for ensuring such requests were personal decisions, made without coercion, and following being granted access to counsel. The Soldier was to be given a reasonable amount of time to consult with counsel prior to making his/her decision. The Soldier was required to make his/her request in writing, which certified he/she had been counseled, understood his/her rights, could receive an under other than honorable conditions character of service, and recognized the adverse nature of such a character of service. 3. The Manual for Courts-Martial, United States, 1995 (as updated in 1998), Maximum Punishment Chart showed both Articles 85 (Desertion Terminated by Apprehension) and 86 (AWOL for more than 30 days Terminated by an Apprehension) both included punitive discharges among their maximum punishments. 4. 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) AR20200000431 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200000431 7 ABCMR Record of Proceedings (cont) AR20200000431 6