IN THE CASE OF: BOARD DATE: 12 March 2021 DOCKET NUMBER: AR20200001902 APPLICANT REQUESTS: an upgrade of his character of service from under honorable conditions (general) to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). 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 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, in 2006 he tried to reenlist and found out that his DD Form 214 (Certificate of Release or Discharge from Active Duty) lists the Reentry (RE) code of a deserter. He believes that his battalion commander and command sergeant major changed his RE code in order to punish him. He was never absent without leave (AWOL); however, he was young and had been diagnosed as having a bipolar disorder. He is not interested in reenlisting but would like the characterization of his service changed to honorable. 3. The applicant enlisted in the Regular Army on 20 July 1995. The highest grade held was specialist/E-4. He completed foreign service in Korea. 4. His record contains numerous acts of military and civilian indiscipline, committed between 23 April 1999 and 26 January 2000. These offenses include: * failing to go to his appointed place of duty on more than one occasion * receiving nonjudicial punishment, an Article 15, for disobeying a superior noncommissioned officer’s order to stay away from the 2nd Battalion, 80th Field Artillery Regiment area * disrespecting a commissioned officer * disrespecting a civilian in the presence of managers and employees * receiving nonjudicial punishment, an Article 15, for using disrespectful language toward a warrant officer, falsifying car tags, making a false official statement, jerking another Soldier (his spouse) by the hands, communicating a threat to his spouse, and communicating a threat to a civilian female * wrongfully associating with a female trainee * arrested for domestic abuse against his spouse * cited as the defendant in a protective order * cited for violation of a protective order, resulting in the revocation of a suspended sentence 5. On 9 August 2012, he underwent a mental health evaluation. This evaluation found the applicant had the mental capacity to understand and participate in the proceedings and he was mentally responsible. He met medical retention requirements prescribed in chapter 3, Army Regulation (AR) 40-501 (Medical Service-Standards of Medical Fitness). He was psychiatrically cleared for any administrative (or judicial) action deemed appropriate by his command. 6. On 26 January 2000, he underwent a separation physical, and he completed a Report of Medical Assessment. There were no significant health issues noted and he was found acceptable for separation. 7. On 8 February 2000, his commander notified the applicant that he had initiated actions to separate him from service under the provisions of AR 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, by reason of commission of a serious offense. His commander cited the following reasons: * the applicant’s pattern of misconduct * failure to obey a superior NCO * being adjudged a sentence by a civilian court for driving under a suspension and reckless driving * being arrested by the civilian police for assaulting his spouse * violating a restraining order resulting in 30 days of civilian confinement * receiving an Article 15 for disrespecting a warrant officer, communicating a threat to his spouse, and assaulting his spouse * lack of respect for authority, both military and civilian 8. On 8 February 2000, the applicant acknowledged receipt of the notification memorandum. He waived this right to counsel and elected not to submit a statement on his own behalf. 9. The separation authority waived the requirement for a rehabilitative transfer and approved the recommended discharge on 10 February 2000. He directed the applicant’s service be characterized as general, under honorable conditions. 10. The applicant was discharged according to the separation authority's directive on 18 February 2000. His DD Form 214 confirms he was discharged under the provisions of AR 635-200, paragraph 14-12c, by reason of misconduct. His service was characterized as under honorable conditions (general). 11. The applicant did not provide evidence of a bipolar diagnosis or any other mental health diagnosis. 12. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. 13. Based on the applicant's contention(s) the Army Review Boards Agency (ARBA) medical staff provided a written review of the applicant's medical records, outlined in the "MEDICAL REVIEW" section of this Record of Proceedings. MEDICAL REVIEW: 1. The applicant is applying to the ABCMR requesting discharge upgrade contending that the misconduct leading to discharge was due to a Bipolar condition he developed while in the Army. 2. The ARBA psychologist was asked by the ABCMR to review this request. Documentation reviewed includes the application, supporting documentation, and military service records. The Department of Veterans Affairs electronic medical record, the Joint Legacy Viewer (JLV), was also reviewed. No hard copy military medical records or civilian medical documentation were provided for review. 3. The military records indicate he received at least nine counseling statements between 23 April 1999 and 4 December 1999 for losing his ID twice, failure to show at place of duty, disobeying orders, disrespecting an officer, disrespecting an employee at his apartment facility, and driving with invalid vehicle tags. In addition, he received at least three Article 15s for disobeying an order (24 May 1999); disrespecting a warrant officer, intimidating his spouse, and threatening to harm a woman (1 December 1999); and assaulting his spouse. He was charged with domestic abuse for striking her in the “face, back and legs, leaving a cut on her face” (9 January 2000). He was subsequently placed in the city jail for 30 days due to violating a restraining order with further threatening behavior. A Report of Mental Status Evaluation, dated 6 January 2000, determined he had normal behavior, unremarkable mood or affect, and was psychiatrically cleared. He received a general discharge on 18 February 2000. 5. The JLV did indicate a 30% service connected disability rating with bilateral Limited Extension of Knee (10%) and Tinnitus (10%). He requested premarital counseling exclusively in 2009. He reported a desire for help with focusing and his anger, as well as trouble with his mind racing all the time and being depressed on 9 August 2012. He complained about prior use of Depakote, not needing pills, and walked out of the clinic before seeing a provider on 22 September 2017. The Problem List included Adjustment Disorder with Mixed Disturbance of Emotions and Conduct (24 January 2020), Sleep Apnea Unspecified (26 December 2019), and Bipolar Disorder, Current Episode Manic without Psychotic Features, Unspecified (12 February 2017). 6. Based on the information in the applicant’s medical record, it is the opinion of the ARBA psychologist that there are no mitigating Behavioral Health conditions. Problems arising from Bipolar Disorder often contribute to manic behavior, racing thoughts, distractibility, risky behaviors, sleeplessness, aggressive behavior, interpersonal difficulties, depression and self-medication with drugs/alcohol. Assaultive behavior, even when provoked, is not part of the natural history or sequelae of Bipolar Disorder (short of being delusional) or other related disorders and, as such, is not mitigated by the claimed condition. 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, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's behavioral health claim and the review and conclusions of the ARBA psychologist. 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 a behavioral health condition. 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. ? 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Provides that 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 of this regulation 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 discharge under other than honorable conditions is normally considered appropriate. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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) AR20200001902 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1