IN THE CASE OF:  
BOARD DATE: 27 May 2021 
DOCKET NUMBER: AR20210007219 

APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
. 
DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 20 May 2018 (two copies) 

. 
Army Review Boards Agency (ARBA) request for medical records 

. 
Department of Veterans Affairs (VA) records (13 pages) 


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. 
He currently works as a contractor for General Dynamics Land Systems, where he works on Abrams tanks. He has plans to further his career at General Dynamics and realizes that education plays a huge role in that. He is planning on attending college this year at college or in . He plans on using financial aid in obtaining an Associate of Applied Science Degree (Welding Program). He also plans on furthering his degree and in doing that, he would need as much financial help as possible. Due to the type of discharge he received, he is not eligible to receive any type of educational benefits (Montgomery or Post 9/11 GI Bill) from the VA. 

b. 
He was suffering from depression and anxiety due to a medical condition he incurred while he was in the Army, and for a majority of the time he was without the proper medication. Today, being under the care of the VA and looking back at the things he did in the Army, he realizes that he was not myself.  He never had any serious legal issues prior to the military and believes he has improved generally as a person. 


3. 
The applicant enlisted in the Regular Army on 20 January 2015. 

4. 
The applicant’s record is void of the facts and circumstances that led to his discharge, with the exception of the separation authority's approval document. However, his record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 4 May 2017, under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b, due to a pattern of misconduct. His DD Form 214 further shows: 

. 
he was discharged in the rank/grade of private first class/E-3 

. 
he was credited with two years, three months, and 15 days of active duty service 

. 
he was awarded an Army Achievement Medal 

. 
his character of service was "Under Honorable Conditions (General)" 



5. 
The Army Discharge Review Board denied the applicant's request for an upgrade on 12 November 2020. The decisional document states that: 


a. 
Per the Board's Medical Officer, a voting member, based on the information available for review at the time in the service record, the Armed Forces Health Longitudinal Technology Application (AHLTA), and Joint Legacy Viewer (JLV), notes indicate diagnoses of anxiety, depression, and sleep difficulties related to a legal process. 

b. 
The applicant was 70% service-connected for Major Depressive Disorder but his Compensation and Pension examination was unavailable. Due to the basis of separation not being in file, there is insufficient evidence to determine if the applicant had a behavioral health diagnosis that is mitigating for the misconduct that led to separation from the Army. 


6. The applicant provided 13 pages of VA records showing was granted a combined disability rating of 90 percent (%), effective 5 May 2017, for following conditions: 
. 
Major Depressive Disorder with Anxious Distress, 70% . Hyperthyroidism, 60% 

. 
Right Hand, Strain, 0% 

. 
Status Post Varicocele Surgery, 0% 

. 
Erectile Dysfunction, 0% 

. 
Scars, Right Knee and Bilateral Upper Extremities, 0% 

. 
Tension Headaches, 0% 


7. 
The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. 

8. 
MEDICAL REVIEW: 


a. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: The applicant did not hold an in-service behavioral health diagnosis. Post-service, the applicant is service connected for Major Depressive Disorder; however, the Compensation and Pension (C&P) exam is void. While the applicant’s DD214 indicates the applicant was discharged for a Pattern of Misconduct, the basis for separation is not in file. While liberal consideration was applied, without the basis for separation, mitigation cannot be determined irrespective of a service connected condition. Accordingly, an upgrade is not supported from a behavioral health standpoint. 
b. The applicant was discharged on 04 May 2017 under Chapter 14-12b, Patterns of Misconduct, with a General characterization.  The basis for separation is unknown. The applicant applied to the ABCMR for reconsideration; a November 2020 Army Discharge Review Board (ADRB) determined the applicant’s discharge was proper and equitable. In the applicant’s request for reconsideration, he asserts he was suffering from depression and anxiety related to a medical condition and was “without prior medication.” The applicant stated he believes he “was not myself” and had never had “serious legal issues” before. Additionally, the applicant highlights he has “improved generally as a person.” 
c. In January 2017, the applicant had a Chapter Mental Status Exam (MSE) for “an unauthorized trip to Mexico.”  The applicant indicated he was “unaware of how he got across the border” asserting a thyroid disorder and alcohol use contributed. The applicant was cleared for separation with no diagnosis.  The applicant had a Command Directed Mental Health Evaluation (CDMHE) in April for a second clearance. The provider cleared the applicant with some interventions for anxiety, depression, and sleep difficulties related to the legal process. 
d. The applicant is 70% service connected for Major Depressive Disorder (MDD), Compensation and Pension (C&P) unavailable.  In December 2017, the applicant reported an in-service diagnosis of Anxiety Disorder; incongruent with records. The provider noted two in-service disciplinary actions; no further details.  The provider diagnosed an Adjustment Disorder and psychiatry diagnosed MDD and Alcohol Use Disorder.  The applicant started medication, but was non-compliant preferring to use cannabis.  The applicant attended a few therapy appointments with a diagnosis of Adjustment Disorder.  In January 2019, during a couple’s therapy intake, the provider diagnosed Cannabis Use Disorder and Anxiety Disorder with ongoing assessment for Substance Induced Mood Disorder rather than MDD.  In April, he was charged with domestic assault and requested a letter from psychiatry for court. The applicant attended a few psychiatry appointments, discontinuing medications on his own and reporting improvement. 
e. The applicant did not provide any medical records or updated documents with his request for reconsideration. 
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. Based upon the lack of information related to the applicant’s misconduct, the post-service violent misconduct of domestic assault found within the medical advisor’s findings, and the lack of mitigation for any misconduct found by the medical advisor, the Board concluded there was insufficient evidence of an 
error or injustice which would warrant a change to the applicant’s characterization of 
service. 

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 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.  The version in effect at the time provided that: 


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 established policy and prescribed 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 being absent without leave. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge was normally considered appropriate; however, a general, under honorable conditions or an honorable discharge could be granted. 

d. 
Paragraph 14-12b addresses a pattern of misconduct consisting of either discreditable involvement with civilian or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army Regulations, the civilian law and time-honored customs and traditions of the Army. 


4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service 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. 


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