IN THE CASE OF: BOARD DATE: 10 July 2020 DOCKET NUMBER: AR20190002258 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 9 January 2018 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, in effect, that he believes he warrants an upgrade due to sustaining a traumatic brain injury (TBI) in 2002 while stationed at Fort Lewis, WA. 3. The applicant enlisted in the Regular Army on 10 August 2000. 4. A line of duty (LOD) investigation and report shows that on 20 April 2002, the applicant, while in a drunken state, hit himself in the face. The LOD determination was that the incident was not in the LOD but was due to his willful misconduct. The applicant had a blood alcohol level of 232 mg/100 ml. 5. Included in the LOD packet is a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 17 May 2002, that shows the applicant was treated for minor injuries as a result of the 20 April 2002 alcohol related incident. The form also states the applicant had called his mother in his drunken state and indicated he was suicidal. His mother notified the military police, who proceeded to investigate. 6. The applicant was afforded a mental health evaluation on 9 December 2002 that found he met retention standards and was mentally responsible and capable to participate in any administrative actions deemed appropriate. 7. The applicant's DD Form 2807-1 (Report of Medical History), dated 12 December 2002, shows he reported sustaining a concussion on 14 July 2002, after which he had four days of loss of memory. The accompanying DD Form 2808 (Report of Medical Examination) does not document the alleged head injury or any findings of residuals of a concussion. 8. The applicant accepted nonjudicial punishment on 13 December 2002, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty on or about 4 November 2002 and on or about 5 November 2002; for being AWOL from on or about 19 November 2002 to on or about 2 December 2002; and for wrongfully using marijuana between on or about 30 September 2002 and on or about 30 October 2002. 9. The applicant's unit commander notified the applicant on 19 December 2002 of his intent to initiate actions to separate him from service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, by reason of illegal drug usage and absence without leave. 10. The applicant consulted with legal counsel on 21 February 2003. a. He was advised of the basis for the contemplated discharge, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant acknowledged the proposed discharge. He acknowledged he understood that if he was discharged with a general discharge he could be deprived some or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could expect to encounter substantial prejudice in civilian life if he received a general discharge. c. He was advised he could submit any statements he desired in his own behalf but waived this option. 11. The applicant's unit commander formally recommended the applicant's separation from service under the provisions of Army Regulation 635-200, Chapter 14, based on the applicant's continued pattern of misconduct. 12. The separation authority approved the recommended discharge on 25 February 2003, under the provisions of Army Regulation 635-200, paragraph 14-12c (2), by reason of illegal drug use. He directed that the applicant receive a DD Form 257A (General Discharge Certificate). 13. The applicant was discharged on 20 March 2003. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c (2) (misconduct – drug abuse) and his service was characterized as under honorable conditions (general). His DD Form 214 further shows he was discharged in the rank/grade of private/E-1. 14. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS) and made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting an upgrade of this 20 March 2003 discharge from under honorable conditions (general) to honorable. He states “I would like to be considered for a discharge upgrade due to issues due to a TBI received while at FT. Lewis WA in 2002.” b. The Record of Proceedings outlines the circumstances of the case. After several periods of being absent without leave (AWOL) and an incident of illicit drug use, the applicant was discharged for a continued patter on misconduct. c. The “TBI” the applicant referenced occurred on the night of 20 April 2002. The DD form 261, Report of Investigation Line of Duty and Misconduct Status summarizes the incident: “On 20 April 2002, PFC [applicant] consumed alcoholic beverages to reach a blood alcohol level of 232 mg/100 ml blood (exhibit J). While in a drunken state, PFC [applicant] hit himself in the face (exhibit I and K).” d. The applicant noted in his statement regarding the incident: “On the night of April 20th 2002 I had consumed way over my limit on alcohol, and was kind of depressed early in that week. So once I got my mind on that stuff, I started getting angry and proceeded to bang my head on the door and punch myself…and was actually not even really injured bad…Being sad and drunk is not a good combination.” e. In that night’s Emergency Care and Treatment note from Madigan Army Medical Center, the provider wrote: “22-year-old male was intoxicated this PM and got in to a fight with his girlfriend on the phone. Afterwards felt guilt and began to punch himself. He admits to difficulty adjusting to recent move here – feeling depressed, anxious, and ruminating thoughts.” f. It does note that he had been on Paxil for the past 2 weeks. His exam revealed some mild bruising, some dried blood, no lacerations, and no significant injuries. There are no AHLTA encounters for the applicant. Based on the history and the medication, it is likely the applicant was being treated for adjustment disorder. The applicant’s enlisted record brief and his DD 214 both show that he had no deployments. g. Based on the information currently available and in accordance with the liberal consideration guidance, it is the opinion of the Agency medical advisor that the applicant did not have a mitigating mental health condition, and therefore an upgrade of his discharge is not warranted. If the applicant submits medical documentation, specifically medical documents that support the diagnosis of a significant mental condition which is linked to his time in service, an Agency Medical Advisor will certainly reevaluate his request. 15. The Board may consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 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 his record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board also concurred with the ARBA Medical Advisor's conclusion that neither TBI nor any other conditions mitigated the misconduct that led to his discharge. 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 : : : 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 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. Action was to be to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or unlikely to succeed. d. Paragraph 14-12c (Commission of a Serious Offense) applied to Soldiers who committed a serious military or civilian offense, when required by the specific circumstances warrant separation and a punitive discharge was, or could be authorized for that same or relatively similar offense under the UCMJ. Illegal drug use is considered a serious offense. 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) AR20190002258 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190002258 6 ABCMR Record of Proceedings (cont) AR20190002258 5