ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 October 2020 DOCKET NUMBER: AR20200003453 APPLICANT REQUESTS: correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show, in effect: •his middle name as "X__" instead of "X__ X__"•the characterization of his service as "honorable" instead of "under honorable conditions (general)"; and•the narrative reason for his separation as "disability" instead of "misconduct" APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: .DD Form 149 (Application for Correction of Military Record) .DD Form 214 .Miscellaneous forms pertaining to his discharge .Standard Form (SF) 600E (Chronological Record of Medical Care) .FST MEDDAC Form 1194 (Medical Progress Notes) FACTS: 1.The applicant did not file within the three-year period provided in Title 10, UnitedStates Code, in section 1552(b); however, the ABCMR conducted a substantive reviewof this case and determined it is in the interest of justice to excuse the applicant's failureto timely file. 2.The applicant's DD Form 4 (Enlistment/Reenlistment Document – Armed Forces ofthe United States) is sufficient to justify correction of his middle name without action bythe Board. 3.The applicant states, in effect, he had a pre-existing physical disability and wasinvoluntarily separated in the best interest of the government. He failed to adapt to amilitary lifestyle; however, he had honorable wartime service subsequent to hisdesertion. 4.The applicant enlisted in the Army National Guard on 31 March 2008. On 28 July2008, he was discharged for enlistment in another component of the U.S. ArmedForces. He enlisted in the Regular Army on 29 July 2008. 5.His records contain/reveals: a."Buddy Watch" memorandums dated 25 and 29 September 2008, from the 3IDBehavioral Health Mental Health Officer, Fort Stewart, GA. The applicant had been evaluated and it was determined he was at some risk for self-harm. b.DA Form 4187 (Personnel Action) which shows the applicant went absent withoutleave (AWOL) on 2 October 2008. On 30 October 2008, his duty status was changed to confined by military authorities and then to hospital. In a military police interview with the applicant, it is noted he turned himself in to the Puerto Rico State Police Department. c.An examination at the San Juan Veterans Administration Medical Center on12 November 2008, noted the following: .Axis I: Major Depressive disorder, severe, without psychotic features, CannabisAbuse .Axis II: Cluster B personality traits .Axis III: Liver enzymes elevation .Axis IV: Lack of family and social support, adjustment issue within the Armymaladaptive behaviors, childhood multiple emotional trauma .Axis V: 20, GAF on D/C:-58 d.On 13 November 2008, he was sent from Fort Buchanan, Puerto Rico to FortStewart, GA, and returned to duty. e.On 20 November 2008, he underwent a mental health evaluation, which found hewas mentally responsible and met the retention requirements of chapter 3, Army Regulation 40-501 (Standards of Medical Fitness). Remarks noted Axis I – adjustment disorder with depressed mood and anxiety and Axis II – cluster B traits. It was recommended the applicant be expeditiously administratively separated under chapter 5-17, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), andhe was deemed nondeployable. f.On 15 January 2009, after being admitted to the psychiatric ward for 7 days, heunderwent a mental health evaluation which found he was mentally responsible and met the retention requirements of chapter 3, Army Regulation 40-501. Remarks noted Axis I –adjustment disorder mixed with anxiety and depressed mood, tetrahydrocannabinol(THC) abuse and occupational problem; Axis II – cluster B traits. The applicant had a long-standing pattern of maladjustment, substance use and personality structure issues that impact his ability to handle stress at home and work. g.On 22 January 2009, he underwent a medical examination as part of hisseparation processing and was found qualified for service and separation. A mental health evaluation revealed he had been admitted to the psychiatric ward for 3 days for depressed mood and reported suicide attempt. Remarks noted Axis I – adjustment disorder mixed with anxiety and depressed mood, THC abuse and occupational problem; Axis II – cluster B traits. h.The applicant went AWOL on 10 February 2009. On 12 February 2009, hereceived a consultation and psychiatric evaluation from the River Point Behavioral Health, Jacksonville, FL. The applicant attempted to stab himself in the heart with a knife. A provisional diagnosis of: .Axis I: Adjustment disorder with depressed mood and suicidal contemplation,versus adjustment disorder, not otherwise specified (NOS) on a background ofmajor depression, seemingly recurrent with psychotic features in acuteexacerbation, versus schizoaffective disorder, versus depressive-psychoticdisorder, NOS. History of Post-Traumatic Stress Disorder. .Axis II: Cluster A and B personality disorder, including amongst others paranoidand borderline traits. .Axis III: Deferred to Dr. Thommi. .Axis IV: Unknown, but seemingly mild to moderate (currently AWOL from themilitary, molested as a child, as well as chronically emotionally disturbed andsuspectedly deprived of primary support. .Axis V: GAF: 20-25 at time of admission. Highest GAF for last year: Unknown. i.On 2 March 2009, his duty status changed from AWOL to confined by civilianauthorities. On 10 March 2009, the status was updated to present for duty 6.On 11 March 2009, the applicant acknowledged receipt of the commander's intent toseparate him. He consulted with legal counsel and he was advised of the basis for thecontemplated separation action for misconduct, the type of discharge he could receiveand its effect on further enlistment or reenlistment, the possible effects of this discharge,and of the procedures/rights that were available to him. He acknowledged heunderstood that he could expect to encounter substantial prejudice in civilian life if anunder honorable conditions (general) discharge was issued to him. He did not submitstatements in his own behalf and he waived consulting counsel and representation bymilitary counsel. 7.On 11 March 2009, subsequent to the applicant's acknowledgement, his immediatecommander initiated separation action against him in accordance with Army Regulation635-200, paragraph 14-12c, for misconduct – serious offense. His commander notedthe applicant went AWOL and remained absent until confined by military authorities on30 October 2008 and again on 10 February 2009 until confined by civilian authorities on2 March 2009. 8.The intermediate authority also recommended approval of the discharge action withan under honorable conditions (general) discharge. 9.On 11 March 2009, the separation authority approved the applicant's dischargeunder the provisions of Army Regulation 635-200, paragraph 14-12c, by reason ofmisconduct – commission of a serious offense, and directed he be discharged with anunder honorable conditions (general) characterization of service. 10.The applicant's records do not contain evidence that he was ever entered into theArmy Physical Disability Evaluation System (PDES). There is no evidence in theavailable record and he provides no evidence that shows a Medical Evaluation Board(MEB) was convened to evaluate his medical conditions. 11.On 30 March 2009, the applicant was discharged accordingly. His DD Form 214confirms he was discharged under the provisions of Army Regulation 635-200,paragraph 14-12c, by reason of misconduct (serious offense) with an under honorableconditions (general) character of service. He completed 6 months and 10 days of netactive service during this period with time lost from 2 October to 30 October 2008 and10 February to 2 March 2009. 12.The applicant provides an SF 600E dated 5 January 2009, which appears to showhe was admitted to the emergency medicine clinic, Fort Stewart, GA. After a bedsideassessment from a physician, the applicant was presumably moved to the psychiatricward. 13.There is no evidence indicating he applied to the Army Discharge Review Board foran upgrade of his discharge within that board’s 15-year statute of limitations. 14.On 25 July 2018, the Under Secretary of Defense for Personnel and Readinessissued guidance to Military Discharge Review Boards and Boards for Correction ofMilitary/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, theguidance 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 principlesto 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 ofservice 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. 15.The Board should consider the applicant's statements and the evidence he provides inaccordance with the 25 July 2018, Under Secretary of Defense for Personnel andReadiness guidance to Military Discharge Review Boards and Boards for Correction ofMilitary/Naval Records (BCM/NRs) regarding equity, injustice, or clemencydeterminations. 16.Based on the applicant's contention the Army Review Board Agency medical staffprovided a medical review for the Board members. See "MEDICAL REVIEW" section. MEDICAL REVIEW: 1.The Army Review Board Agency (ARBA) Medical Advisor reviewed the supportingdocuments and the applicant’s military service records. A review of the Armed ForcesHealth Longitudinal Technology Application (AHLTA) & Health Artifacts ImageManagement Solutions (HAIMS) indicates he was first seen on 25 Sept 2008 forsuicidal thoughts. The applicant reported not being able to make it in the militarybecause of the pressure. He reported a history of childhood abuse for 10 years andstarting drug use as a teenager. He reported a history of suicidal thoughts anddepressed mood prior to military service. He was diagnosed with Adjustment Disorder. 2.On 30 Oct 2008, he was psychiatrically hospitalized and diagnosed with MajorDepressive Disorder, Cannabis Abuse, and Cluster B personality traits. On 14 Nov2008 he was hospitalized following his return from Puerto Rico and discharged on 20Nov 2008. He was evaluated and found to meet retention standards but a Chapter 5-17 was recommended due to his inability to function in the military. He was enrolled inthe Army Substance Abuse Program (ASAP) on 21 Nov 2008 due to cannabis use. He was admitted again from 24-25 Nov 2008 with a diagnosis of Adjustment Disorder with Anxiety and Depressed Mood. He was admitted on 9-15 Jan 2009 due to suicidal ideation. On 22 Jan 2009, a diagnosis of Personality Disorder, cluster B traits was added to Adjustment Disorder and Cannabis Abuse. He was seen regularly in the outpatient clinic and ASAP clinic until his discharge. He was admitted to a civilian facility (while AWOL) on 11 Feb 2009 due to suicidal thoughts and poking himself in the chest with a knife with a desire to stab himself in the heart. 3.He was discharged on 12 Feb 2009 with the following diagnoses: AdjustmentDisorder with Depressed Mood; Paranoid and Borderline Personality Traits, and historyof PTSD. A review of VA’s Joint Legacy Viewer (JLV) indicates he has a serviceconnected disability rating of 70%. There is no documentation in JLV to indicate theconditions that resulted in his disability rating. There is documentation to support abehavioral health condition at the time of his discharge. He was in treatment andevaluated multiple times and met retention standards at the time of his discharge. Hisbehavioral health diagnoses are not mitigating factors for the misconduct that led to hisdischarge. One provider made note of a history of a PTSD diagnosis but there is nodocumented PTSD diagnosis in any of his treatment records. However, a chapter 5-17would have been more appropriate disposition of his case. He demonstrated a clearinability to adapt to military service and had insufficient coping skills to deal with theincreased stress he experienced in military service. BOARD DISCUSSION: 1.After review of the application and all evidence, including the Administrative Notes(below the signature), the Board found sufficient evidence to grant partial relief. Theboard applied Office of the Secretary of Defense standards of liberal consideration andclemency to the complete evidentiary record, including the applicant’s statement andthe Medical Review and found insufficient evidence of error, injustice, or inequityregarding the character of service, but found sufficient evidence to partially amend thenarrative reason for separation. 2.The applicant’s middle name will be corrected by Administrative Notes. 3.Regarding the applicant’s request for a discharge upgrade from General, UnderHonorable Conditions to an Honorable discharge, the Board agreed with the MedicalReview that there is insufficient evidence that the applicant’s behavioral healthconditions recorded during the applicant’s service were mitigating factors for themisconduct that led to his separation. The Board agreed that drug use and the applicant’s other misconduct are offenses punishable under the Manual for Courts-Martial. As such, the Board deemed that an Honorable discharge was not warranted. 4.Regarding the applicant’s request for a correction of his records to show his narrativereason for separation as “disability” vice “Misconduct (Serious Offense),” the Boardagreed with the Medical Review that the applicant demonstrated a clear inability toadapt to military service and he had insufficient coping skills to deal with the increasedstress he experienced in military service. a.There is insufficient evidence in the applicant’s medical records that the applicanthad a medical condition that was unfitting at the time of discharge and would have warranted a “disability” or medical retirement. Therefore, the Board agreed that “Condition, not a disability,” would be a more appropriate narrative reason for the applicant’s discharge. b.Army Regulation 635-200, chapter 5-17 is the authority for a “Condition, not adisability” narrative reason for separation. Chapter 5-17 states commanders may separate Soldiers under this chapter for physical or mental conditions not amounting to disability. One category includes, other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the soldier’s ability to effectively perform military duties is significantly impaired. Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XX :XX :XX GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: In addition to the Administrative Notes annotated by the Analyst of Record (below the signature), the Board determined the overall merits of this case are sufficient to grant partial relief. 1.The Board recommends granting the correction noted in Administrative Notes. 2.The Board recommends amending the applicant’s DD Form 214 by showing: .in item 25 (Separation Authority) “AR 635-200, PARA 5-17” vice “AR 635-200,PARA 14-12c,” .in item 26 (Separation Code) “KFV” vice “JKQ” .in item 28, “Condition, not a disability” vice “Misconduct (Serious Offense)” 3.The Board recommends denial of the request for an Honorable discharge 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): The applicant's DD Form 4 is sufficient to justify correction of his middle name without action by the Board. His DD Form 214 should be corrected by DD Form 215 (Correction to DD Form 214) to show in item 1 NAME (Last, First, Middle) the entry, "Daroza, Alexander Lee." REFERENCES: 1.Title 10, United States Code, section 1552(b), provides that applications forcorrection of military records must be filed within 3 years after discovery of the allegederror or injustice. This provision of law also allows the ABCMR to excuse an applicant'sfailure to timely file within the 3 year statute of limitations if the Army Board forCorrection of Military Records (ABCMR) determines it would be in the interest of justiceto do so. 2.Army Regulation 635-200 sets forth the basic authority for the separation of enlistedpersonnel. a.Chapter 14 establishes policy and prescribes procedures for separating membersfor 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. However, a discharge under honorable conditions (general) or an honorable discharge may be granted. b. Paragraph 3-7b states that 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. Paragraph 3-7c states that a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. d. Paragraph 5-17 (Other designated physical or mental conditions) states commanders may separate Soldiers under this chapter for physical or mental conditions not amounting to disability. One category includes, other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the soldier’s ability to effectively perform military duties is significantly impaired. 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability. It states, in pertinent part, that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. Once an MEB determines the Soldier fails medical retention standards, the Soldier is referred to a Physical Evaluation Board (PEB). 4. Army Regulation 635-40 also provides that an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions. Under the provisions of Army Regulation 635-200, paragraph 1-33, the commander exercising general court-martial jurisdiction over the Soldier may abate the administrative separation. This authority may not be delegated. A copy of the decision, signed by the General Court-Martial Convening Authority (GCMCA), must be forwarded with the disability case file to the PEB. A case file may be referred in this way if the GCMCA finds the following: a. The disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions. b. Other circumstances warrant disability processing instead of alternate administrative separation. 5. 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. 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. 6. Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. 7. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS//