IN THE CASE OF: BOARD DATE: 25 February 2020 DOCKET NUMBER: AR20170001819 APPLICANT REQUESTS: his under honorable conditions (general) discharge be upgraded to an honorable discharge. 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 17 December 2016, with personal statement 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: a. His name has been legally changed to; however, no supporting legal documents were submitted. b. In an additional self-authored statement, the applicant states, in effect, that he was diagnosed with Schizoaffective Disorder after he was discharged from the military. His doctor said he was showing the symptoms of schizophrenia towards the end of his enlistment. He got into fights with his platoon sergeant, he was always thinking people were out to get or harm him. He even thought his mom and wife were trying to poison him, due to him being diagnosed with schizoaffective disorder. He realized his brain was functioning this way because he was not taking medication. c. He was never a bad Soldier; he was in a leadership position above his paygrade. If he had been diagnosed three years earlier, he would have received an honorable discharge due to his medical issue. He was told by doctors his mental illness is combat related; he’s currently receiving 100 percent (%) disability through the Department of Veterans Affairs (VA) for post-traumatic stress disorder (PTSD) and schizoaffective disorder. He would like his discharge upgraded to an honorable discharge. 3. The applicant enlisted in the Regular Army on 18 April 2006. 4. The applicant was formally counseled on three separate occasions between 1 May and 4 May 2009, for reasons including but not limited to assaulting another Soldier, failure to report for duty, and disorderly conduct in the barracks. 5. The applicant's commander notified the applicant on 10 January 2009 that he was initiating actions to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, paragraph 14-12b, for patterns of misconduct. His commander cited, as the specific reason for the proposed separation, the applicant's assault on several Soldiers on separate occasions, as well as his incapacitation that prohibited him from the proper performance of his duties. 6. The applicant consulted with counsel on 11 January 2009 and was advised of the basis for the contemplated actions to separate him under Army Regulation 635-200, paragraph 14-12b and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights. He acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life if he was issued an under honorable conditions (general) discharge. He acknowledged his understanding and declined to provide a statement in his own behalf. 7. The applicant underwent a mental status evaluation on 21 May 2009. The relevant DA Form 3822-R (Report of Mental Status Evaluation) shows he had normal behavior, was fully alert and oriented, and had clear thought process and normal thought content. However, he was diagnosed with adjustment disorder with depressed mood. The evaluating physician determine he had the mental capacity to understand and participate in any administrative proceedings and he was cleared for any administrative action deemed appropriate by his Command. 8. The applicant's immediate commander formally recommended his separation from service under the provisions of Army Regulation 635-200, Chapter 14, by reason of patterns of misconduct. The separation authority approved the recommended action on 17 June 2009 and directed the issuance of a general, under honorable conditions discharge. 9. The applicant was discharged on 26 June 2009. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct – pattern of misconduct. His service was characterized as under honorable conditions (general). 10. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade to his service characterization. The ADRB considered his request on 7 May 2014, determined he was properly and equitably discharged, and denied his request for relief. 11. In the processing of this case, an advisory opinion was obtained on 27 January 2020 from the Army Review Boards Agency Medical Advisor/Psychologist. a. The advisory official noted that on 21 May 2009, the applicant was evaluated by a psychiatrist, confirming a diagnosis of Adjustment Disorder with depressed mood and finding that the applicant met retention standards in accordance with (IAW) Army Regulation 40-501 (Standards of Medical Fitness). b. The advisory official reviewed the applicant’s VA medical records, which show the applicant was diagnosed with PTSD. The advisory official opined: * IAW the 3 September 2014 Secretary of Defense Liberal Guidance, there IS documentation to support the existence of a behavioral health condition at the time of discharge * the available records indicate that the applicant DID meet medical retention standards IAW Army Regulation 40-501 * PTSD is a mitigating factor for the misconduct that led to his discharge c. The applicant was provided a copy of this advisory opinion to provide him an opportunity to comment and/or submit a rebuttal. He did not respond. 12. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, the separation packet in the records and the reason for his separation. The Board considered the review and conclusions of the medical advising official, the applicant’s statement and the diagnosis in his VA records. The Board found sufficient evidence of in-service mitigation to overcome the misconduct. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was unjust and that a correction to the applicant’s record was appropriate. 2. After reviewing the application and all supporting documents, the board found that relief was warranted. 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 amending the DD Form 214 for the period of service ending 26 June 2009 to reflect in item 24 (Character of Service) – “Honorable” vice “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. ADMINISTRATIVE NOTE(S): Not Applicable 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. a. Paragraph 3-7a 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. Paragraph 3-7b provides 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. 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 provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. 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. 4. 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) AR20170001819 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20170001819 5 ABCMR Record of Proceedings (cont) AR20170001819 4