ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 April 2021 DOCKET NUMBER: AR20200001237 APPLICANT REQUESTS: * an upgrade of his characterization of his service from under honorable conditions (general) to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DA Form 2-1 (Personnel Qualification Record) * Enlisted Record Brief * Army Discharge Review Board (ADRB) Case Number AR20050017630 FACTS: 1. The applicant did not file within the three-year period provided in Title 10, United States Code, 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: a. He was an excellent Soldier who was promoted twice in basic training and awarded the command professionalism award. He received an under honorable conditions (general) discharge only after he refused to partake in a medical evaluation board (MEB) due to his desire to continue on active duty. b. He received a brain injury and was placed on dozens of medications, which created a rift between his commander and the medical staff. He requested a permanent change of station, but was denied. His commander pushed him to do things that his laundry list of medications prevented him from doing. Subsequently, he completed his bachelor's degree and became a Federal law enforcement officer while living as an honorable member of the country. 3. The applicant enlisted in the Regular Army on 17 August 2001. 4. Evidence contained in his Official Military Personnel File shows: a. On 14 September 2002, the applicant became disorderly and refused to remain quiet when repeatedly ordered to do so by the patrol supervisor on scene in violation of Article 92, Uniform Code of Military Justice (UCMJ). The applicant was a witness to an assault and began talking to other witnesses. When told to be quiet, he became belligerent and refused to listen to military police. The applicant was administered a portable breath test registering 0.115, was apprehended and transported to the station for processing. He was subsequently released to his unit. b. On 27 September 2002, he received punishment for violating Article 86, UCMJ, for on or about 15 September 2002, without authority, failing to go to his appointed place of duty. The applicant's punishment consisted of a suspended reduction to the rank/grade private/E-2; and restriction to the limits of the troop area, place of duty, quarters, place of worship, dining and medical facilities for 14 days. The applicant did not elect to appeal his punishment. c. Sworn statements, which attest to the applicant's activities while he was undergoing treatment for a medical condition, which seemingly prevented him from properly executing his military duties, but not from performing nonmilitary duties such as drinking, playing pool, fishing, and doing yard work. d. On 24 April 2003, the applicant underwent a physical examination. His records contain DA Form 3349 (Physical Profile), dated 5 May 2003, which shows he received a permanent physical profile for migraines with aura. e. DA Form 3947 (MEB Proceedings), which shows an MEB convened 5 May 2003, to evaluate the applicant's medical condition. Item 12 of this form shows the applicant did not present views on his behalf. After consideration of clinical records, laboratory findings, and physical examination, the MEB found the applicant suffered from migraines with aura, which incurred while he was entitled to base pay and did not exist prior to service chronic. The applicant was recommended for referral to a Physical Evaluation Board for further adjudication. The findings and recommendation of the MEB were approved on 7 May 2003. f. On 1 May 2003, the applicant received a command referred mental status evaluation. Axis III of the evaluation, which contains general medical conditions, noted the presence of a brain tumor. However, there was no evidence of mental defect, emotional illness, or psychiatric disorder of sufficient severity to warrant disposition through military medical channels. The applicant was found mentally responsible for his behavior, could distinguish right from wrong, and possessed sufficient mental capacity to participate in any proceedings. He was psychiatrically cleared for any administrative action deemed appropriate by the command. There is no evidence in his available medical records, which supports his claim that he received a brain injury and was placed on dozens of medications. 5. On 22 May 2003, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b, for misconduct – patterns of misconduct. The specific reasons for the proposed action were: a. The applicant's failure to be at his appointed place of duty on numerous times between September 2002 and February 2003; being drunk, disorderly, and refusing to obey an order to remain quiet, as instructed by a military police officer on 14 September 2002; making a false official statement to a noncommissioned officer by saying he had been placed on permanent quarters; feigning headaches and illness for the purposes of avoiding duty on numerous occasions from July 2002 to 15 April 2003; and failing to obey the order of a commissioned officer by going to another physician who was not aware of his malingering. b. His commander recommended the issuance of an under honorable conditions (general) discharge. 6. On 22 May 2003, the applicant acknowledged receipt of the commander's intent to separate him. He consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and 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 he understood that he could expect to encounter substantial prejudice in civilian life if an under honorable conditions (general) discharge was issued to him. He did not submit statements in his own behalf and he requested consulting counsel and representation by military counsel. 7. Subsequent to his acknowledgement, the applicant's immediate commander initiated separation action against him in accordance with Army Regulation 635-200, paragraph 14-12b, for patterns of misconduct. His commander noted the applicant had received a company grade Article 15 on 27 September 2002 and a field grade Article 15 on 20 May 2003; however, the applicant's counseling packet had disappeared. The applicant's chain of command also recommended approval of the discharge action with an under honorable conditions (general) discharge and further recommended that the applicant not be transferred to the Individual Ready Reserve, as he showed no potential for further service. 8. On 20 June 2003, the Commanding General, Headquarters, U.S. Armor Center and Fort Knox, Fort Knox, KY, stated that the administrative separation procedures involving the applicant would continue as he found the applicant’s medical condition was not the direct or substantial contributing cause of the misconduct which led to the recommendation for his administrative elimination. 9. On 26 June 2003, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct – pattern of misconduct, and directed he be discharged with an under honorable conditions (general) characterization of service. 10. On 2 July 2003, the applicant was discharged accordingly. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of a pattern of misconduct with an under honorable conditions (general) discharge. He completed 1 year, 10 months, and 16 days of net active service during this period with no time lost. 11. On 1 December 2005, the applicant applied to the ADRB in an effort to upgrade his discharge. After carefully examining the applicant's record of service the board determined the characterization of his discharge was both proper and equitable and voted unanimously not to grant relief in the form of an upgrade of the characterization of his service to honorable. 12. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical 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 or her office, grade, rank, or rating. The regulation further 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. 13. 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. 14. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included 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). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting an upgrade of his 2 July 2003 discharge characterized as under honorable conditions (general). He states: I was given the general under honorable discharge only after I refused a MEB {medical evaluation board}, due to the desire to stay on active duty. I received a brain injury and was placed on dozens of medications. A rift was raised between my CO {commanding officer} and medical staff. I asked to PCS {permanent change of station] and was denied. My CO pushed me to do things that my laundry list of medications was preventing me from doing. I completed my bachelor’s degree, became a federal law enforcement officer. I have lived as and am an honorable member of my country.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows he entered the regular Army on 17 August 2001 and was discharged under honorable conditions (general) on 2 July 2003 under the separation authority provided by paragraph 14-12b of AR 635-200, Personnel Separations – Enlisted Personnel (1 November 2000): “Pattern of Misconduct.” c. This request was previously denied in full by the ADRB on 11 October 2006 (AR20050017630). No new documentation was submitted with the application. d. On 22 May 2003, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, AR 635-200, for reason of patterns of misconduct. He lists the reasons for his action: “You failed to be at your appointed place of duty on numerous times between Sep 02 and Feb 03. On 14 Sep 02, you were drunk and disorderly and refused to obey an order to remain quiet, as instructed by SGT Tanner, a military police officer, who was responding to an assault at the parking lot adjacent to the barracks. On 15 Feb 03, you made a false official statement to SGT William Record by saying you had been placed on permanent quarters. On numerous occasions from Jul 02 to 15 Apr 03, you feigned headaches and illnesses for the purpose of avoiding duty. You abused the medical system of "Quarters" from Oct 02 to 22 Apr 03 to recover from an illness. You were placed in the training room for approximately three months for light duty, and subsequently, your entire counseling packet disappeared. Although seemingly too ill to work, you were very active when off duty, in addition to frequenting the Time Out Sports Bar in the evenings. Due to your exaggeration of your medical condition and constant illnesses, you were assigned a sole health care provider at Ireland Community Hospital, MAJ R. On 21 Apr 03, you failed to obey CPT J. P.'s order, by going to another medical physician who was not aware of your malingering. Your history of deception resulted in distrust by your command and a Field Grade Article 15. In the process of this non-judicial proceeding, you wrote a statement to LTC E.C., the 1/16th Cavalry Regiment Commander, claiming that you were a "manic depressant bi-polar classified with suicidal tendencies" since you were 16 years old, yet this so called fact was not stated anywhere in your enlistment contract. Dr. W. opined to 1SG M.R. in reference to you that "if anyone was willing to play the game long enough that they could manipulate the system to their advantage", in which you have done. These acts reflect poorly upon you, this unit, and the United States Army. This will not be tolerated by this command.” e. On 5 May 2003, a medical evaluation board had determined the applicant’s migraines failed medical retention standards. Because the applicant was pending an administrative discharge, the decision to forward his case to a physical evaluation board needed to be made by the commander exercising general court-martial jurisdiction over the applicant. Paragraph 4-1a of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (1 September 1990) states: Uniform Code of Military Justice (UCMJ) action. The case of a soldier charged with an offense under the UCMJ or who is under investigation for an offense chargeable under the UCMJ which could result in dismissal or punitive discharge, may not be referred for, or continue, disability processing unless (1) The investigation ends without charges. (2) The officer exercising proper court-martial jurisdiction dismisses the charges: (3) The officer exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such sentence. f. On 20 June 2003, the Commanding General, Headquarters, U.S. Army Armor Center and Fort Knox, after considering whether to process the applicant through the physical disability system, determined that the applicant's “medical condition is not the direct or substantial contributing cause of his misconduct that led to the recommendation for administrative elimination.” He directed that the administrative separation procedures would continue. The applicant was so discharged on 2 July 2003. g. Because of the period under consideration, there are no concurrent encounters in AHLTA. h. There does not appear to be any new information submitted with the application. There was no new medical documentation submitted and there is no documentation supporting the claimed traumatic brain injury. The applicant underwent a command directed mental status evaluation 8 May 2003. The provider concluded the applicant had no mental health disorder, was mentally responsible, and had the mental capacity to understand and participate it the administrative discharge proceedings. i. Review of his records in JLV show that he service connected for major depressive disorder. j. Based on review of the available information and in accordance with the Liberal Consideration guidance, it is the opinion of the Agency medical advisor that the applicant’s Major Depressive Disorder partially mitigates his prior acts/behaviors. As there is an association between Major Depressive Disorder and decreased motivation, avoidant behaviors, and self-medicating, there is a nexus between the applicant's condition and his multiple missed failures to report and the drunk and disorderly citation. There is not an association between this condition and dishonestly or lack of integrity. 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. Despite the findings of the medical advisor, based upon the short term of honorable service completed prior to a lengthy pattern of misconduct leading to the applicant’s separation, the Board concluded that any mitigation given for the misconduct was outweighed by the misconduct itself. Therefore, the Board recommended denying the applicant’s requested discharge upgrade request. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :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. X CHAIRPERSON 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, United States Code, 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. Army Regulation 635-40 establishes the Army Physical 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 or her office, grade, rank, or rating. The regulation further 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. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for 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 3-7a 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. c. 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. 4. 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. 5. 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. //NOTHING FOLLOWS//