ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 August 2019 DOCKET NUMBER: AR20180015570 APPLICANT REQUESTS: an upgrade of his general discharge (GD) under honorable conditions to an honorable discharge (HD). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of discharge or Dismissal from the Armed Forces of the United States) * Manuscript from the National Institute of Health on Functional outcomes of child and adolescent Oppositional Defiant Disorder (ODD) symptoms in young adult men * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Master of Arts Degree Certificate * Bachelor of Interdisciplinary Studies Certificate * Certificate of Baptism * Certificate of Church Membership FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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. He previously applied for an upgrade of his discharge; however, he was denied. He is making this request again due to his increased knowledge on mental health services and the effects of family dynamics on thinking and behavior patterns. b. He understands that living with parents with mental illness for almost two decades could lead to behavior patterns that could affect not only himself but his other siblings within the home. Many of his behaviors have been outgrown by learning coping skills, taking on a religious practice, and counseling. He is presently a Licensed Masters level counselor in the state of Michigan and has been endeavoring for that last two years to slowly get his private practice going. He really believes at the time he was in the military, he was dealing with a minimum ODD, or adjustment disorder. He was not diagnosed in the military because they were unaware of my family dynamics or behaviors. If he was not provided counseling to identify coping skills or interventions to help him with complying to rules and adapting to the military he was not fully successful in the Army at no fault of his own but due to neglectful and mentally and behavioral disabled parents. He has, in the time he left the military, completed my Bachelors and Master’s Degree, been married to his wife of 18 years whom he married while in the military, with all his behavior issues. He has even ventured into setting up his own counseling business to service veterans. c. According to the National Institute of Healthy, "Although ODD is characterized as a disorder of childhood, it seems likely that these difficulties would not simply cease upon reaching adulthood. Rather, it seems more plausible that individuals with ODD likely continue to demonstrate problematic behavior during interactions with peers, coworkers, bosses and customers, and would have problems maintaining jobs and relationships. Nevertheless, apart from a growing body of evidence regarding increased rates of other psychopathology in adulthood associated with ODD, there remains a striking absence of information about the degree to which ODD confers risks for poor functional outcomes in adulthood." He has attached the article for review and consideration. He would also like to state additional studies have been done and without proper diagnosis and treatment on intake or prior to being sworn into military it can be overlooked as long as the a person has proper health and passes the exam. d. He has had behavioral problems from youth and have had multiple suspension and a low grade point average in High-school. He was able to not be considered as behavioral disabled due to lack of school knowledge and resources along with not receiving the necessary therapy that could have given him the coping skills and interventions needed to be successful and deal with the symptoms that were observable. His discharge says a pattern of behavior and that pattern of behavior over several months demonstrates problems was there. He has siblings who live in New York and other parts of the world who could affirm their parents behavior and actions within the home. 3. The applicant was counseled on several occasions regarding his performance and behavior. 4. The applicant accepted non-judicial punishment on the following occasions: * 25 May 2001, for failing to go a the prescribed time to his appointed place of duty * 22 October 2001, for failing to go a the prescribed time to his appointed place of duty, deportment behavior, and failure to obey a lawful order * 19 February 2002, for failing to go a the prescribed time to his appointed place of duty on three separate occasions 5. On 22 March 2002, his commander notified him that he was initiating action to discharge him for reasons of patterns of misconduct under the provisions of chapter 14- 12b of Army Regulation 635-200. His reasons for the proposed action were on several occasions the applicant failed to go at the prescribed time to his appointed place of duty; the applicant behaved himself with deportment towards a superior commissioned officer; and he also disobey a lawful order. The commander informed of his available right and recommend a GD. The applicant acknowledged receipt. 6. On an unspecified date, after having been advised by his consulting counsel of the basis for the contemplated action to separate him for misconduct the applicant acknowledged he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He also acknowledged that as a result of a discharge under other than honorable conditions he might be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life. He indicated he was submitting a statement in his own behalf; however, this statement is not available for review. 7. On 8 April 2002, an authorized official approved the applicant immediate separation for a pattern of misconduct. The requirement for rehabilitative transfer was waived. The authorized official directed he receive a GD. 8. On 23 April 2002, he was discharged by reason of a pattern of misconduct under the provisions of paragraph 14-12b, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations). He completed 2 years, 7 months, and 15 days of active service that was characterized as under honorable conditions (general). He was awarded or authorized the Army Achievement Medal, Army Service Ribbon, Overseas Service Ribbon, and the Air Assault Badge. 9. His record is void of documentation that shows he was treated for an injury or an illness that warranted his entry into the Physical Disability Evaluation System (PDES). Additionally, there is no indication he was issued a permanent physical profile or underwent a medical evaluation board (MEB) or a physical evaluation board (PEB). 10. On 27 December 2010, the Army Discharge Review Board denied his request for an upgrade of his discharge. 11. On 19 July 2019, the ABCMR obtained an advisory opinion from a Medical Advisor with Army Review Boards Agency (ARBA), who states, in part, the reviewed documents do not support the existence of a boardable behavioral health condition at the time of discharge. The applicant’s records indicate he did meet medical retention standards. The applicant has not been diagnosed with any behavioral health condition. The diagnosis put forth by the applicant would not be mitigating factors in the misconduct that resulted in his discharge. A copy of the complete medical advisory was provided to the Board for their review and consideration. 12. On 7 August 2019, the applicant was provided a copy of the advisory opinion for comment or rebuttal. He did not respond 13. Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 14 in effect at the time dealt with separation for various types of misconduct. Paragraph 14-12b provided for the separation of a Soldier due to a pattern of misconduct. This included discreditable conduct and conduct prejudicial to good order and discipline including conduct in violation of the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army regulations, civil law, and time-honored customs and traditions of the Army. The issuance of a discharge under other than honorable conditions was normally considered appropriate for separations under the provisions of chapter 14. b. 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. 14. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System 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 office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service 15. In reaching its determination, the Board can consider the applicant's petition, his statements, and his service record, in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined relief was not warranted. The Board considered the applicant's statement and educational achievements and the conclusions of the medical advising official. The Board found insufficient evidence of mitigating factors to apply clemency. Based upon the pattern of misconduct outlined in multiple counseling statements and Article 15s, the Board concluded that the characterization of service received at the time of separation was appropriate. 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 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, 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 Army Board for Correction of Military Records (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, then in effect, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provided that an honorable discharge was a separation with honor and entitled 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 14-12b provided for the separation of a Soldier due to a pattern of misconduct. This included discreditable conduct and conduct prejudicial to good order and discipline including conduct in violation of the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army regulations, civil law, and time-honored customs and traditions of the Army. The issuance of a discharge under other than honorable conditions was normally considered appropriate for separations under the provisions of chapter 14. 3. Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. The regulation essentially requires that the service member must have voluntarily enlisted; must be in basic, advanced individual, on-the-job, or service school training prior to award of a military occupational specialty and must not have completed of more than 179 days of active duty on the current enlistment by the date of separation. The regulation provided that Soldiers may be separated when they have demonstrated that they are not qualified for retention due to failure to adapt socially or emotionally to military life; cannot meet minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self- discipline; or have demonstrated character and behavior characteristics not compatible with satisfactory continued service. 4. On 25 August 2017 the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; traumatic brain injury (TBI); sexual assault; or sexual harassment. 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. 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards 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. 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.