IN THE CASE OF: BOARD DATE: 25 February 2021 DOCKET NUMBER: AR20200001138 APPLICANT REQUESTS: The applicant requests the upgrade of his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Mobilization Orders * Extract from applicant's medical records, 177 pages FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 his father died and the applicant was grieving his loss. He acknowledges he should have asked for help, but, in his sorrow, he made a bad choice to self-medicate. The applicant declares he wants the Board to consider his entire military career; by the time he was discharged, he had served 10 honorable years, but seeing his 300-pound father reduced to 98 pounds as a result of cancer took a toll on the applicant's mental health. The applicant maintains he made one mistake under duress, but he does not feel that that one bad decision should outweigh the cumulative strength of 10 years of dedicated service. In support of his request, the applicant submits his mobilization orders and 177 pages extracted from his medical records. 3. The applicant's service records show: a. On 20 August 1983, the applicant enlisted in the Georgia Army National Guard (GAARNG) for 6 years. On 22 April 1987, he was separated from the GAARNG with a general discharge under honorable conditions, based on continuous and willful absence; the applicant was transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete the remainder of his military service obligation. b. On or about 7 November 2001, the applicant applied to reenter the GAARNG; however, the applicant required a waiver because of the reentry code associated with his previous discharge. In his request for a waiver, the applicant stated his earlier unsatisfactory participation had been the result of marital problems, which were now resolved. The applicant's waiver was subsequently approved, and he reenlisted into the GAARNG on 11 November 2001 for a 1-year term. On 7 November 2002 and again on 19 July 2003, the applicant extended his enlistment by 1 year. c. On 12 June 2004, the applicant's GAARNG chain of command promoted him to specialist (SPC)/E-4. On 12 September 2004, the applicant extended his enlistment for an additional 3 years, making his adjusted expiration term of service date 10 November 2007. d. Orders mobilized the applicant, ordering him to active duty effective 4 January 2005 for a period not to exceed 545 days and in support of Operation Iraqi Freedom. Documents provided by the applicant show the following: (1) DA Form 2173 (Statement of Medical Examination and Duty Status), dated 20 April 2005, indicates the applicant incurred a neck injury on 3 February 2005 from jumping off a bunk to attend morning formation. (2) The applicant's medical records show he was determined to be non- deployable on 28 April 2005 due to cervical radiculopathy; the pain he experienced caused him to be unable to raise his right arm. e. Effective on or about 29 April 2005, orders attached the applicant to a U.S. Army Garrison Holding Battalion at Fort Stewart, GA, for medical processing; orders subsequently showed, on 15 June 2005, the applicant was retained on active duty at Fort Stewart due to his voluntary participation in Reserve Component Medical Holdover Medical Retention Processing for completion of medical care and treatment. f. The applicant's medical records additionally reflect: (1) On 16 August 2005, the applicant saw a social worker; the applicant was feeling depressed following the death of his father 2 weeks earlier. The social worker opined the applicant was grieving normally, and he appeared calm, relaxed, and under no apparent distress. (2) On 3 November 2005, the applicant was brought via ambulance to the Fort Stewart Emergency Department after being involved in a motor vehicle accident; the applicant was riding as a front seat passenger, wearing his seatbelt, when another car struck the vehicle. The accident exacerbated the applicant's existing orthopedic conditions. (3) On 3 January 2006, a medical authority at Fort Stewart stated, in a letter of intent, that the applicant had failed medical retention standards under paragraph 3-39h (Spine, Scapulae, Ribs, and Sacroiliac Joints – Nonradicular Pain involving the Cervical, Thoracic, Lumbosacral, or Coccygeal Spine), Army Regulation (AR) 40-501 (Standards of Medical Fitness). The documents provided by the applicant do not show what action was taken following the submission of this letter of intent. g. The applicant's separation packet is not available for review; however, his service record includes a DD Form 214 (Certificate of Release or Discharge from Active Duty), which shows, on 26 January 2006, the applicant was separated from active duty under other than honorable conditions. The DD Form 214 further indicates he completed 1 year and 23 days of net active duty service with no lost time; the separation authority was chapter 10 (Discharge in Lieu of Trial by Court-Martial), AR 635-200 (Active Duty Enlisted Administrative Separations). The applicant was awarded or authorized the National Defense Service Medal, Global War on Terrorism Service Medal, Army Service Ribbon, Armed Forces Reserve Medal with "M" Device, and a marksmanship qualification badge. h. On 26 January 2006, the applicant was separated from the GAARNG with a general discharge under honorable conditions; his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) listed the separation authority as National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 8-27d (Request for Discharge in Lieu of a Court-Martial Authorized to Adjudge a Punitive Discharge). i. On 7 October 2014, the applicant petitioned the Army Discharge Review Board (ADRB) requesting an upgrade to general under honorable conditions. (1) The applicant contended his discharge had been too severe because there were mitigating circumstances. He stated he was preparing to deploy when he injured his back; the injury caused him to be placed on medical hold. While on medical hold, he learned his father was near death, so the applicant returned home; his father's condition severely depressed the applicant and aggravated the applicant's back pain. Unwisely, the applicant sought to alleviate the pain with illegal drugs. On his return to his unit, the applicant took a drug test and tested positive; he was subsequently discharged. The applicant contended he should have been offered rehabilitation so he could continue to serve honorably; he maintained he had learned from his mistake and would never have committed such an error again. (2) On 16 December 2015, the ADRB conducted a records review and denied the applicant's request; although the specific facts and circumstances surrounding the applicant's discharge were absent from the applicant's record, the ADRB presumed regularity. With regard to the applicant's contentions about his injury, mitigating circumstances, and the lack of counseling, the ADRB stated the evidence was insufficient to support his claims. k. On 6 July 2017, the applicant applied again to the ADRB, requesting a personal appearance; he argued that he needed this upgrade so he could obtain Department of Veterans Affairs health benefits. The applicant submitted his father's obituary, along with letters of support. On 26 February 2019, an ADRB Travel Panel conducted a hearing in Georgia and voted to deny the applicant's request. 4. Although the basis for court-martial charges is unavailable, the separation authority is listed as chapter 10, AR 635-200. Per this provision, Soldiers charged with UCMJ violations that carry a punitive discharge as a punishment can request separation in-lieu of trial by court-martial; such requests are voluntary and can be made once court- martial charges have been preferred. Assuming the applicant was charged with violating Article 112a (Wrongful Use, Possession, etc. of Controlled Substances), punitive discharges were authorized among the maximum punishments. 5. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 6. Based on the applicant's submission of 177 pages extracted from his medical records, the Army Review Boards Agency (ARBA) medical staff provided a medical review for the Board members. See the "MEDICAL REVIEW" section." MEDICAL REVIEW: The ARBA Medical Advisor reviewed the supporting documents and the applicant’s military service records. A review of the Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Management Solutions (HAIMS) indicates he received medical care from February 2005 to January 2006. During that period, he was seen on 16 August 2006 due to depressed mood over his father’s death. He was diagnosed with bereavement. He was also screened on 24 January 2006 prior to his departure from Fort Stewart. He denied any significant mood symptoms and did not meet diagnostic criteria for any psychiatric diagnosis at that time. A review of the Department of Veterans Affairs (VA) Joint Legacy Viewer indicates he has not been evaluated or treated in the VA system. He does not have a service connected disability rating. There is no documentation to support a behavioral health condition during his military service. There is no documentation to suggest he did not meet behavioral health retention standards at the time of his discharge. There is no behavioral health condition to consider with respect to mitigation of the misconduct that led to his discharge. 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 to include deployment, and the reason for his separation. The Board considered the applicant's medical condition and the review and conclusions of the ARBA Medical Advisor. 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, USC, 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 ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge). An honorable character of service represented a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service had generally met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b (General Discharge) stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 permitted a Soldier to request discharge in lieu of trial by court-martial when they had committed an offense or offenses which, under the UCMJ and the Manual for Courts-Martial, United States (2002 Edition), included a bad conduct or dishonorable discharge as a punishment. The Soldier could submit such a request at any time after court-martial charges were preferred. Once approved, an under other than honorable conditions discharge was normally furnished, but the discharge authority could direct a general discharge, if warranted. 3. AR 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, prescribed policies and procedures for enlisted promotions and reductions. Paragraph 7-1e (Reductions) stated Soldiers were required to be reduced to the lowest enlisted grade when they had an approved under other than honorable conditions discharge. 4. The Manual for Courts-Martial, United States (2002 Edition), Appendix 12 (Maximum Punishment Chart) showed punitive discharges were among the available maximum punishments for violations of Article 112a (Wrongful Use, Possession, etc. of Controlled Substances/Wrongful Distribution of, or, with Intent to Distribute, Wrongful Possession, Manufacture, Introduction, or Wrongful Importation of or Exportation of Amphetamine, Cocaine, Heroin, LSD, Marijuana, and Schedule I, II, and III Controlled Substances) 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness (The Honorable Robert L. Wilkie) 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. 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. 6. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. It states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR is not an investigative body and decides cases based on the evidence presented in the military records provided and the independent evidence submitted with the application. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200001138 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200001138 7 ABCMR Record of Proceedings (cont) AR20200001138 6