IN THE CASE OF:   
BOARD DATE:  4 April 2022
DOCKET NUMBER:  AR20210014517 


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) discharge be upgraded. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 











•DD Form 149 (Application for Correction of Military Record)•Discharge and Aftercare Summary, dated 26 July 2005•Medical Transport Bill, dated 9 February 2009•Mental Health Division, Order of Dismissal, dated 24 February 2009•Social Security Administration Benefit Verification Letter, dated 25 May 2021•Self-Authored Statement, dated 3 June 2021



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 MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file.

2.The applicant states after his discharge it was discovered that he had a bi-polarcondition, for which he is currently receiving social security disability benefits.Additionally, he suffers from cluster headaches that have made it difficult for him to holdsteady employment.  While serving in the military he had two misdemeanor arrestsrelated to drinking; however, there were no felony arrests.  In retrospect, his excessivedrinking was to self-medicate during a time when he was not properly diagnosed.

3.The applicant enlisted in the Regular Army on 18 September 2003, for a period of3 years.

4.The applicant accepted non-judicial punishment, under the provisions of Article 15 ofthe Uniform Code of Military Justice (UCMJ), on the following dates:

•1 June 2005, for failure to go at the time prescribed to his appointed place of dutyon or about 9 May 2005, 1 May 2005, 28 April 2005, 18 April 2005, 15 April 2005,and 12 April 2005

•12 August 2005, for failure to go at the time prescribed to his appointed place ofduty on or about 25 June 2005, and for failure to obey a lawful order on or about17 June 2005



5.A Mental Status Evaluation, dated 15 August 2005, shows the applicant wasdeemed mentally capable to understand and participate in board proceedings deemednecessary by his command.

6.A DA Form 2697 (Report of Medical Assessment), dated 24 August 2005, noted theapplicant had problems with emotional and cognitive disorder and alcohol substanceabuse problems, with a relatively short experience with marijuana.

7.The applicant's immediate commander notified the applicant on 13 September 2005of his intent to initiate separation actions against him under the provisions of ArmyRegulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b, for misconduct – pattern of misconduct.

8.The applicant consulted with counsel on 14 September 2005 and was advised of thebasis for the contemplated actions to separate him and of the rights available to him.He elected to submit a statement in his own behalf, wherein he asked for leniency andthe chance to continue his Army career.

9.The applicant's immediate commander formally recommended his separation fromservice under the provisions of Army Regulation 635-200, Chapter 14, by reason ofmisconduct.  He recommended the applicant be issued an honorable characterization ofservice.





9.The separation authority approved the recommended action on 27 September 2005 and directed the issuance of an under honorable conditions (general) discharge certificate.10.The applicant was discharged on 8 October 2005.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct.  His service was characterized as UOTHC.11.The applicant provides a discharge and aftercare summary from Medical Center Emergency Department, dated 26 July 2005, which shows he received discharge instructions for manic depression.  He was advised to follow-up with outpatient psychiatry.
12.The Board should consider the applicant's statement in accordance with thepublished equity, injustice, or clemency determination guidance.  Boards are to giveliberal consideration to Veterans petitioning for discharge relief when the application forrelief is based in whole or in part on mental health conditions, including post-traumaticstress disorder (PTSD).  The veteran’s testimony alone, oral or written, may establishthe existence of a condition or experience, that the condition or experience existedduring or was aggravated by military service, and that the condition or experienceexcuses or mitigates the discharge.

13.MEDICAL REVIEW:

The Army Review Board Agency (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 Solutions (HAIMS) indicates he initially seen on 14 Dec 2004 and was diagnosed with Adjustment Disorder with mixed emotional features. He had recently reported to a new duty station and was having difficulty dealing with his divorce. He was seen for individual therapy every 2 weeks. On 4 May 2005, his commander contacted the psychologist requesting a command referral. His commander noted that the applicant continued to have relational problems and difficulty adjusting to serving in the military. He recently showed up for a funeral detail without his uniform and became emotionally distraught when confronted. On 6 May 2005, the applicant was seen for a command directed behavioral health evaluation. He stated that his day consists of work in the band and supporting funeral details. He stated he had too much work and not enough sleep. His diagnosis of Adjustment Disorder was confirmed with no duty limitations. On 9 May 2009, the applicant stated his commander was considering a chapter 13 due to noncompliant behavior and continued mistakes. He reported continued interpersonal difficulty at work and significant alcohol abuse. He was referred to the Army Substance Abuse Program. On 20 May 2005, he was enrolled in ASAP treatment. On 14 Jun 2005, he stated he used alcohol to deal with loneliness and not being able to fit in. On 28 Jun 2005, his provider was contacted by his commander. The commander noted that the applicant received an Article 15 for again not having his uniform. He has had 3 other uniform incidents since the Article 15. The commander noted continued conflict with other band members as well. He also had a run in with police when he refused to leave a property when the owner asked him to. He also failed to completed his required extra duty. He recently missed an event because he said he couldn’t play because of continuous headaches but failed to keep his appointment with neurology. On 20 Jul 2005 he was seen by neurology. He reported getting a concussion 4 weeks ago and reported headaches since then. Results of the MRI were normal. On 21 Jul 2005, the chief of ASAP documented that the applicant continued to be late for ASAP group or gets up and leaves early. He noted the applicant was disruptive during group. He recommended a psychiatric evaluation be completed. The applicant was evaluated on 22 Jul 2005 and diagnosed with Alcohol Dependence and Adjustment Disorder with Disturbance of Conduct. On 2 Aug 2005, he reported taking 3-4 supplements from the health food store in addition to the migraine medicine he was recently prescribed. He was encouraged to discontinue the OTC medications he had purchased. On 15 Aug 2005, the applicant was seen for a psychological evaluation to include testing and a mental status evaluation. The applicant reported discontinuing the migraine medication and feeling much better since then. Psychological testing was completed with results in the normal range with no suggestions of psychopathology. Testing indicated a tendency to show off and be sarcastic, ostentatious, and exhibitionistic. The applicant concurred with the interpretation and noted he had been that way since childhood. The psychologist noted that personality disorder traits could be contributing to his difficulty in functioning in the Army. He met retention standards IAW AR 40-501 and was cleared for administrative separation. On 1 Sept 2005, he completed a separation physical and was cleared for administrative separation. Provider note from 3 Oct 2005 indicates the applicant was drinking on Friday and got arrested. He posted bail and return to post. He was out-processing the military that week and would not attend any further appointments. A review of JLV indicates the applicant has not been evaluated or treated in the VA system. He does not have a service connected disability rating. Civilian medical records indicate he was seen in the ER on 26 Jul 2005 and released with a diagnosis of Manic Depression. He was discharged from the psychiatric hospital on 19 Feb 2009. The applicant provided documentation of Social Security Disability payments but no diagnosis is provided. The applicant asserts his excessive drinking and public intoxication arrests were a form of self-medication for Bipolar. No medical documentation of this diagnosis was provided for review. While he was seen in a ER and released with a diagnosis of manic depressive he was not psychiatrically admitted for stabilization or a through psychiatric evaluation. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is documentation to support a behavioral health diagnosis at the time of his discharge. The applicant was in individual therapy and substance abuse treatment. He was evaluated multiple times and consistently diagnosed with Adjustment Disorder and Alcohol Dependence. He met retention standards at the time of his discharge. Neither of his psychiatric diagnoses are mitigating factors for the misconduct that led to his discharge.  
a.Kurta Questions
(1)Did the applicant have a condition or experience that may excuse or mitigatethe discharge?
(a)Yes
(2)Did the condition exist or experience occur during military service?
(a)Yes
(3)Does the condition or experience actually excuse or mitigate the discharge?
(a)No
(4)Does the condition or experience outweigh the discharge?
(a)No

BOARD DISCUSSION: 

After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief was warranted. The Board  carefully considered applicant’s contentions, military record, medical review and regulatory guidance. The Board considered the review and conclusion of the medical advisor and documentation showing a post-service diagnosis manic depression. One possible outcome was to deny relief based on the review and conclusion of the medical advisor. Notwithstanding the medical review, the majority of Board members concluded that although that diagnosis occurred post-service, it more likely than not contributed to his in-service conduct and performance and; therefore, should be considered as potential mitigation for misconduct that led to his discharge. Based on the preponderance of evidence available for review, the Board determined the evidence presented sufficient to warrant a recommendation for relief. 




















BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: :X :X GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

:X : : 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 reissuing the applicant a DD Form 214 for the period ending 8 October 2005 showing 

•Characterization of Service: Under Honorable Conditions
•Separation Authority: No change
•Separation Code: No change
•Reentry (RE) Code: No change
•Narrative Reason for Separation: No change





Microsoft Office Signature Line...

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 militaryrecords 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 timelyfile within the three-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.

2.Army Regulation 635-200, in effect at the time, set forth the basic authority for theseparation of enlisted personnel:

a.Paragraph 3-7a provides that an honorable discharge is a separation with honorand 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.Paragraph 3-7b provides that a general discharge is a separation from the Armyunder 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 establishes policy and prescribes procedures forseparating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge UOTHC is normally considered appropriate.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 

3.The Secretary of Defense directed the Service Discharge Review Boards (DRBs)and Service Boards for Correction of Military/Naval Records (BCM/NRs), on3 September 2014, to carefully consider the revised PTSD criteria, detailed medicalconsiderations, and mitigating factors when taking action on applications from formerservice members administratively discharged UOTHC and who have been diagnosedwith PTSD by a competent mental health professional representing a civilian healthcareprovider in order to determine if it would be appropriate to upgrade the characterizationof the applicant's service.

4.The Under Secretary of Defense for Personnel and Readiness provided clarifyingguidance to Service DRBs and Service BCM/NRs on 25 August 2017.  Thememorandum directed them to give liberal consideration to veterans petitioning fordischarge relief when the application for relief is based in whole or in part on mattersrelating to mental health conditions, including PTSD, traumatic brain injury (TBI), sexualassault, or sexual harassment.  Standards for review should rightly consider the uniquenature of these cases and afford each veteran a reasonable opportunity for relief even ifthe mental health condition was not diagnosed until years later.  Boards are to giveliberal consideration to Veterans petitioning for discharge relief when the application forrelief is based in whole or in part on those conditions or experiences.  The guidancefurther describes evidence sources and criteria and requires Boards to consider theconditions or experiences presented in evidence as potential mitigation for misconductthat led to the discharge.

a.Guidance documents are not limited to UOTHC discharge characterizations butrather 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 militaryservice.  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. 

5.The Under Secretary of Defense for Personnel and Readiness issued guidance toMilitary Discharge Review Boards and Boards for Correction of Military/Naval Recordson 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemencygenerally refers to relief specifically granted from a criminal sentence.  Boards forCorrection of Military/Naval Records may grant clemency regardless of the court-martialforum.  However, the guidance applies to more than clemency from a sentencing in acourt-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 andprinciples 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 ofservice 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//