IN THE CASE OF: BOARD DATE: 9 March 2022 DOCKET NUMBER: AR20210013894 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) 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 19 May 2021 * Photograph of a “The Mission Continues” [A National Veteran Nonprofit Community Organization], Coin 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 in effect; he was never a bad Soldier. Before joining the military he already had mental issues due to the death of his first child. He started suffering from depression when he learned the grandfather who raised him was dying. He was essentially separated for smoking marijuana. He also experienced receiving racial slurs from his superiors, during his service. He has not been any legal trouble since separation, is now sober, and creating a better life. 3. In preparation for enlistment into the Regular Army, the applicant underwent an initial entry examination on 12 August 2002, during which time, he did not disclosed any prior medical or mental issues. The examining physician found qualified for enlistment, at that time. 4. The applicant enlisted in the Regular Army on 12 June 2003. He attained the rank/grade of specialist SPC/E-4, on 1 March 2005. 5. The applicant's service record contains the following documentation: a. Two DA Forms 4856 (Developmental Counseling Form), showing he was counseled on the following dates: * on 23 May 2005 for not returning from leave as scheduled on 16 May 2005; and for illegally storing three fully loaded magazines of live 5.56 mm ammunition, in his barracks room * on 21 July 2005 for failing to be at his appointed place of duty, on 21 July 2006, and twice on 20 July 2005 b. The applicant accepted non-judicial punishment (NJP) on 28 July 2005, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for the following offenses: * violating a lawful general regulation by wrongfully possessing three full magazines of live 5.56mm ammunition in his barracks room, on or about 16 May 2005 * failing to go at the time prescribed to his appointed place of duty at the Mental Health Clinic for an appointment, on or about 20 July 2005 * dereliction of duty, by willfully failing to return to work after his Mental Health Clinic appointment, on or about 20 July 2005 * failing to go at the time prescribed to his appointed place of duty, on or about 21 July 2005 c. A memorandum from the Fort Bragg, Installation Biochemical Testing Coordinator, dated 13 September 2005, showing the applicant submitted a urine sample on 7 September 2005, as part of a random unit urinalysis inspection, which tested positive for THC [marijuana]. The relevant DD Form 2624 (Specimen Custody Document – Drug Testing) with the applicant’s matching name and social security number confirms the positive THC [marijuana] findings are from the sample he submitted. 6. The applicant’s service record contains the following medical documentation: a. Standard Form (SF) 600 (Health Record – Chronological Record Critical Care), dated 14 September 2005. This form shows he was diagnosed with adjustment disorder with depressed mood. b. DD Form 2807 (Report of Medical History), dated 14 September 2014; showing he indicated the following, however his comments for these items are unreadable: * Item 12.d. (Numbness or tingling) * Item 12.h. (Swollen or painful joint(s) * Item 12.i. (Knee trouble) * Item 14.c. (Currently in good health) * Item 15.a. (Dizziness or fainting spells) * Item 17.g. (Been evaluated or treated for a mental condition) * Item 17.i. (Used illegal drugs or abused prescription drugs) c. DD Form 2808 (Report of Medical Examination), dated 14 September 2005; showing the examining physician noted he previously had right knee pain. However there were no comments on his reported being evaluated for mental ailments noted at that time. d. DA Form 3822-R (Report of Mental Status Evaluation), shows he underwent a mental status evaluation on 15 September 2005. The evaluating physician determined he had the mental capacity to participate in the proceedings; was found mentally responsible; met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3. There was no evidence of any psychiatric condition that warranted disposition through medical channels. He was psychiatrically cleared for any administrative action deemed appropriate by his command. 7. The applicant again accepted NJP on 12 October 2005, under the provisions of Article 15 of the UCMJ, for the following offenses: * three specifications of failing to go at the time prescribed to his appointed place of duty, on or about 29 September 2005; 3 October 2005; and 5 October 2005 * dereliction of duty, by willfully failing to return to his duty as staff duty a runner, on or about 9 September 2005 * wrongfully using marijuana between on or about 7 August 2005 and 7 September 2005, at or near Fort Bragg, NC * his sentence included a reduction in rank/grade to private (PV2)/E-2 8. The applicant’s service record contains a second memorandum from the Fort Bragg, Installation Biochemical Testing Coordinator, dated 12 October 2005, which shows the applicant submitted a urine sample on 7 September 2005, as part of a random unit urinalysis inspection, which tested positive for THC [marijuana]. The relevant DD Form 2624, with the applicant’s matching name and social security number confirms the positive THC [marijuana] findings are from the sample he submitted. 9. The applicant again accepted NJP on 7 November 2005, under the provisions of Article 15 of the UCMJ, for wrongfully using marijuana, between on or about 5 September 2005, and 5 October 2005 at or near Fort Bragg, NC. His sentence included a reduction in rank/grade to private (PV1)/E-1. 10. The applicant's commander notified the applicant on 9 November 2005 that he was initiating actions to separate him from service under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for misconduct – commission of a serious offense, with an UOTHC discharge. The commander cited the applicant’s wrongful use of marijuana on two separate occasions. The applicant acknowledged receipt of the notification memorandum the same day. 11. The applicant's commander formally recommended his separation on 9 November 2005, under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of his misconduct – commission of a serious offense and listed the aforementioned reasons for his request. He noted there was no data meriting disposition through medical channels. 12. The applicant consult with counsel on 9 November 2005 and was advised of the basis for the contemplated actions to separate him under the provisions of Army Regulation 635-200, paragraph 14-12c, and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights. He acknowledged he may encounter substantial prejudice in civilian life if he received an UOTHC discharge. He voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less than a under honorable conditions (general) discharge. Otherwise, he requested consideration and personal appearance before an administrative separation board. He elected to submit a statement in his own behalf; however, no such statement is available for review. 13. The applicant’s battalion commander recommended approval of his separation with a general discharge on 26 November 2005. 14. The applicant’s brigade commander recommended approval of his separation with an UOTHC discharge on 28 November 2005. 15. The separation authority also the convening authority; disapproved his request for a conditional waiver on 7 March 2006. He further directed the applicant to appear before a separation board, to determine whether he should be discharged because of his commission of a serious offense pursuant to Army Regulation 635-200, paragraph 14- 12c. 16. The applicant consulted with counsel a second time on 13 March 2006 and was advised of separation authority’s disapproval of his conditional waiver; and to appear before an Administrative Separation Board on 28 March 2006. He was again advised of the rights available to him; and of the effect of any action taken by him to waive his rights. He acknowledged he may encounter substantial prejudice in civilian life if he received an UOTHC discharge. He voluntarily waived consideration of his case by an administrative separation board and personal appearance before an administrative separation board; and elected not to submit a statement in his own behalf. 17. The separation authority directed the applicant’s discharge on 21 March 2006, with an UOTHC service characterization. He also noted he would not transferred to the Individual Ready Reserve (IRR) for completion of his statutory service obligation. 18. The applicant was discharged on 7 April 2006. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct (Drug Abuse). He was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He was credited with completing two years, nine months, and 26 days of net active service. 19. The applicant's available record does not contain documentation showing, and he did not provide any evidentiary documentation to substantiate his assertions he was subjected to racial slurs during his service. 20. 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 mental health conditions, including PTSD. The Veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience may have existed during or might have been aggravated by military service, and that the condition or experience may excuse or mitigate the discharge. 21. In reaching its determination, the Board can consider the applicant’s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. 22. MEDICAL REVIEW: The applicant is applying to the ABCMR requesting discharge upgrade contending that the misconduct leading to his Under Other Than Honorable Conditions discharge was due to depression he developed and racial discrimination he experienced during his time in service. a. The Agency psychologist was asked by the ABCMR to review this request. Documentation reviewed includes the applicant’s completed DD149 and supporting documentation and his military separation packet. The VA electronic medical record, Joint Legacy Viewer (JLV) and the military electronic medical record (AHLTA) were reviewed as well. Hard copy military medical records or civilian medical documents were not provided for review. b. Review of the applicant’s military documentation indicates that he enlisted in the Army Reserve (Delayed Entry Program) on 12 Aug 2002 and subsequently transferred to the Regular Army on 12 Jun 2003. His duty assignment was Automated Logistical Specialist. He was awarded the Global War on Terrorism Service Medal, Army Service Ribbon and Parachutist Badge. c. He received an Article 15, dated 27 Jul 2005, and two Developmental Counseling Forms (DCF), for “wrongfully possessing 3 full magazines of live 5.56 ammunition in your barracks room” (16 May 2005) and missing a mental health appointment, as well as “work call” (20, 21 Jul 2005). The DCF (16 May 2005) noted, “the Command expects higher standards from you since you are the Battalion Armorer and you are supposed to be aware of this.” He received another Article 15, dated 29 Sep 2005, for missing three formations, not returning to “staff duty as runner,” and “use marijuana” between 07 Aug and 07 Sep 2005. His third Article 15 was for use of marijuana between 05 Sep 2005 and 05 Oct 2005. A Chronological Record of Medical Care, dated 14 Sep 2005, noted his diagnosis, “Adjustment Disorder with Depressed Mood.” Following this, a Mental Status Evaluation, dated 15 Sep 2005, noted normal behavior and thought along with unremarkable mood/affect. He was “psychiatrically cleared for any administrative action” while being diagnosed with “Mood Disorder NOS.” A Separation Under the Provision of AR 635-200, Chapter 14-12c, was initiated by his commander, dated 09 Nov 2005, for “Commission of a Serious Offense.” He received an Under Other Than Honorable Conditions discharge on 07 Apr 2006 with DD-214 Narrative Reason for Separation, Misconduct (Drug Abuse). d. The military electronic medical record (AHLTA) included a Psychology note, AMC Womack – Bragg, dated 02 Nov 2005 indicating, “history obtainable - I mean I’m just done with the Army. I really don’t care about it no more. The stuff don’t make no sense to me. Patient reported being on extra duty for being hot on a U/A for marijuana…also reported that he missed about 10-15 PT formations. Don’t go to work, but get the job done…he recently learned that his grandfather was slowly dying.” The psychologist diagnosed him with Adjustment Disorder with Depressed Mood. A Psychology Telcon note indicated, “Cpt reported that pt has a recent history to suicide attempt by overdose in May 2005 and that he has been seen at DOBH…has a chaotic family and recently lost an infant child within the past year. CPT was concerned that pt has not been keeping appts and wanted pt seen for safety. CDE was approved.” Another Psychology note, dated 30 Nov 2005 indicated, “chief complaint is Frustration and lack of motivation. PT was referred for CDE because of his history of a suicide attempt by overdose in May 2005…death of a child, geographic separation from spouse, family problems due to mother’s loss of job and grandfather’s illness, recent financial loss, and recent legal problems UCMJ actions due to marijuana abuse and failure to report for formations.” The clinical psychologist diagnosed him with Adjustment Disorder with Disturbance of Emotions and Conduct, Bereavement Without Complications Loss of Child and Cannabis Abuse. A Telcon Psychology note, dated 20 Dec 2005 indicated, “CPT inquiring as to the whereabouts of this soldier who has apparently gone AWOL. He has not kept appointments at DOBH. SM has substantial pending legal issues and a history of AWOL. Recommend contacting emergency rooms and civilian authorities.” The Problem List included Bereavement without Complications Loss of Child, Cannabis Abuse, Adjustment Disorder with Disturbance of Emotions and Conduct, Fatigue, Depression and Adjustment Disorder with Depressed Mood. e. The VA electronic medical record, Joint Legacy Viewer (JLV) did not indicate any service connected disability(s). A Mental Health Outpatient Note, dated 11 May 2021 indicated, “Veteran identified the following therapy needs to be addressed in this treatment episode: anxiety/depression associated with past experiences. Veteran reported continued distress related to past events, including the death of his 4 month old daughter when he was 17 and witnessing the death of a friend by gun violence when he was 24…reported disrupted sleep, hypervigilance, social avoidance and emotional numbness. He declined to pursue trauma-focused treatment at this time.” He participated in several Depression and Anxiety Groups covering from at least 04 Jun-16 Jul 2021 with four no shows. The Problem List indicated Major Depressive Disorder, Recurrent, Moderate (16 Jul 2021). The other behavioral health related problems have already been listed on the AHLTA problem list. f. Based on the available information and in accordance with the Liberal Consideration guidance, it is the opinion of the Agency psychologist that the applicant has a mitigating Behavioral Health condition, Adjustment Disorder with Disturbance of Emotions and Conduct. As there is an association between Adjustment Disorder with Disturbance of Emotions and Conduct and use of illicit drugs to self-medicate symptoms, there is a nexus between his symptoms and the pattern of substance abusing behavior applicant demonstrated. Also, as there is an association between Adjustment Disorder with Disturbance of Emotions and Conduct, and avoidant behavior, there is a nexus between applicant’s symptoms and his absences/neglectful performance from required duty functions. It is more likely than not that the racial discrimination he reported contributed to his overall psychological instability as well. Chronological review of his military career indicates a dramatic change in the applicant’s motivation, temperament and level of instability occurred during his period of active duty. Such a radical change in behavior is consistent with the behavioral changes seen in soldiers who develop Adjustment Disorder with Disturbance of Emotions and Conduct in a noncombat environment. g. Kurta Questions (1) The applicant did have a condition that may excuse or mitigate the discharge (i.e. Adjustment Disorder with Disturbance of Emotions and Conduct). (2) The condition did exist and the traumatic events occurred during military service. (3) Finally, the Adjustment Disorder with Disturbance of Emotions and Conduct actually does excuse or mitigate the discharge – said condition mitigates for his missed formations, substance abuse and neglectful, unsafe storage of ammunition. A discharge upgrade is recommended, as well as a change to the DD-214 Narrative Reason for Separation, indicating Chapter 5-17 – Condition, Not a Disability. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the medical opinion finding the applicant has a mitigating Behavioral Health condition, adjustment disorder with Disturbance of Emotions and Conduct. As there is an association between adjustment disorder with Disturbance of Emotions and Conduct and use of illicit drugs to self- medicate symptoms. Additionally, the Board also agreed with the official finding there is a nexus between his symptoms and the pattern of substance abusing behavior applicant demonstrated. To include there is an association between adjustment disorder with Disturbance of Emotions and Conduct, and avoidant behavior, there is a nexus between applicant’s symptoms and his absences/neglectful performance from required duty function. 2. The Board determined it is likely that the racial discrimination he reported contributed to his overall psychological instability as well. The Board noted that a chronological review of his military career indicates a dramatic change in the applicant’s motivation, temperament and level of instability occurred during his period of active duty. Evidence in the record show the applicant’s battalion commander recommended the applicant be separated with an under honorable (general) conditions discharge based on his understanding of the applicant’s struggles. The Board determined there was sufficient evidence to grant relief with an upgrade to under honorable (general) conditions and correction to his narrative reason based on updated regulatory guidance. Therefore, the Board granted relief. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period ending 7 April 2006, to show a characterization of service as under honorable (general) conditions and his narrative reason for separation as Chapter 5-17 – Condition, Not a Disability. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 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. c. Chapter 14 of this regulation in effect at the time, established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A UOTHC discharge was normally considered appropriate. However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record. 3. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR), on 3 September 2014 [Hagel Memorandum], to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 4. The Acting Principle Deputy Under Secretary of Defense (Personnel and Readiness) provided clarifying guidance to Service DRBs and Service BCM/NRs on 24 February 2016 [Carson Memorandum]. The memorandum directed the BCM/NRs to waive the statute of limitations. Fairness and equity demand, in cases of such magnitude that a Veteran's petition receives full and fair review, even if brought outside of the time limit. Similarly, cases considered previously, either by DRBs or BCM/NRs, but without benefit of the application of the Supplemental Guidance, shall be, upon petition, granted de novo review utilizing the Supplemental Guidance. 5. The Under Secretary of Defense (Personnel and Readiness) provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017 [Kurta Memorandum]. The memorandum directed them to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, traumatic brain injury (TBI), sexual assault, or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each Veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. 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. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 6. The Under Secretary of Defense (Personnel and Readiness) issued guidance to Service DRBs and Service BCM/NRs on 25 July 2018 [Wilkie Memorandum], 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 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) AR20210013894 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1