IN THE CASE OF: BOARD DATE: 20 July 2022 DOCKET NUMBER: AR20210015796 APPLICANT’S REQUEST: The applicant requests an upgrade of his general, under honorable conditions discharge to fully 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) FACTS: 1. Standard of Review. When arriving at its findings and making its determinations, the Board shall review the petition for requested relief independent from any previous petitions submitted to the Army Discharge Review Board (ADRB) or the Army Board for Correction of Military Records (ABCMR).?? 2. The applicant states: a. The rushed process of discharge and the reasons given without taking into account the documented mental issues of a young Soldier even after he was sent to a mental facility while in service. All of his actions were deemed simply to be misconduct instead of signs of a deeper mental issue. In that period of service, mental health and wellness was not as focused on as in current times and he believes that steps could have been taken to not only properly diagnose the issues, but to also save him from the many years of added anxiety and depression that followed. b. It [the discharge] was addressed before, yet had not been deemed enough to get corrected. As the years have gone by, mental health has been taken more seriously, and so he is once again reaching out to have his military discharge status upgraded. Also it has been difficult getting the files from the mental health facility he was sent to while in service. 3. On 17 September 2001, the applicant enlisted in the Regular Army for a period of 5 years. He completed training requirements and was awarded military occupational specialty 31B (Military Police). 4. His record contains Personnel Action forms showing he was absent without leave (AWOL) from 3 to 9 August 2003. 5. On 30 October 2003, the applicant received non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from on or about 3 to 9 August 2003 and failing to be at his appointed place of duty (accountability formation) on 12 August 2003. His punishment consisted of reduction to private (E-2) and extra duty for 14 days. He did not appeal. 6. The applicant was counseled for acts of misconduct and indiscipline during the period of December 2003 to March 2004. In pertinent part, he was counseled for: * failing to be at his appointed place of duty and failing to notify his chain of command on several occasions * failing to return to duty (charge-of-quarters (CQ) runner) * failing to obey a lawful order on multiple occasions * disrespecting a noncommissioned officer (NCO) * indecent acts and dereliction of duty 7. On 30 March 2004, he received NJP under the provisions of Article 15 of the UCMJ for failing to obey a lawful general order on 3 separate occasions (wrongfully driving on a suspended or revoked State driver’s license); disobeying a lawful order; failing to be at his appointed place of duty (swing shift weapons draw); failing to be at his appointed place of duty (formation); and wrongfully wearing upon his uniform the insignia or grade of specialist (E-4). His punishment consisted of reduction to private (E-1), forfeiture of $596 pay per month for 2 months; extra duty and restriction for 45 days. The applicant did not appeal. 8. On 20 July 2004, the applicant's commander notified him of his intent to to separate him from the Army under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 14, section III, paragraph 14- 12b, for patterns of misconduct. a. The reasons for his commander’s proposed actions were: On 16 December 2003, the applicant failed to report to his class 3 dental appointment and never returned to work. On 8 December 2003, he failed to return to his duty as CQ runner. On 11 January 2004, the applicant disobeyed a direct order from sergeant to be present at the Provost Marshal Office at 0730 hours with all of his equipment. On 12 January 2004, he failed to report to his place of duty. On 13 January 2004, the applicant failed to report to his place of duty. On 23 January 2004, he was arrested for driving on a suspended license. On 19 February 2004, the applicant disobeyed a direct order from sergeant GAB, not to get someone to take his shift unless cleared through the chain of command. On 1 March 2004, the applicant was again arrested for driving under a suspended license. On 10 March 2004, specialist saw him having sexual intercourse with a woman in a common area while he was on duty as CQ runner. b. The commander advised the applicant of his rights and recommended he receive a general discharge. c. Legal counsel advised the applicant of the basis for his contemplated separation and its effects, the rights available to him and the effect of a waiver of his rights. The applicant elected not to submit statements in his own behalf. d. The commander formally recommended the applicant for separation action and the chain of command recommended approval of the request for separation. e. On 29 July 2004, the separation authority approved the recommended discharge, waived the requirement for a rehabilitative transfer, and directed the applicant be furnished a General, Under Honorable Conditions Discharge Certificate (DD Form 257A). 9. The applicant was discharged on 24 August 2004, under the provisions of AR 635- 200, paragraph 14-12b, for misconduct. His service was characterized as under honorable conditions (general). He was credited with 2 years, 11 months and 2 days of net active service with lost time from 3 to 8 August 2003. The applicant was awarded or authorized the: * National Defense Service Medal * Global War on Terrorism Service Medal * Army Service Ribbon * Overseas Service Ribbon * Korea Defense Service Medal 10. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. a. The evidence shows the applicant accepted NJP on 2 occasions for driving on a suspended or revoked State driver’s license on 3 separate occasions, disobeying an NCO, failing to be at his appointed place of duty on multiple occasions, being AWOL from 3 to 8 August 2003, and wrongfully and without authority wearing on his uniform insignia of the grade of specialist (E-4). He was also counseled multiple times for acts of misconduct and indiscipline. b. As a result of his misconduct the applicant was reduced in rank, forfeited pay, performed extra duty and he was restricted to certain areas. He consulted with legal counsel and elected not to submit statements in his own behalf. The separation authority approved his discharge under honorable conditions (general). In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. c. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. 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 under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 11. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 12. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Solutions (HAIMS) was not in use during his time in service. On 6 Apr 2004, the applicant was admitted to the VA hospital (while on active duty) due to thoughts of hurting others (peers and commander). He reported recently returning from Korea and having financial and marital problems. He reported his grandfather died 3 months prior but he couldn’t attend the funeral. He was also worried about his mother’s health (cancer and diabetes) and is terminally ill. The applicant reported childhood physical abuse by his father. He believes everyone was out to get him at work. He stated he was charged with AWOL when he had driven to to get his wife and child and had a MVA. He met his wife in Korea (fellow service member) but hated the military and got out due to pregnancy. She lives in with her mother. He reports his mood as depressed and unhappy and often shows his temper at his superiors. He reported being late to formation and feels they punish him too severely. The applicant stated he wanted to be out of the military. He wanted to hit his SGT be in jail or check in a VA hospital. He saw no other options. He was diagnosed with Adjustment Disorder with disturbance in mood and conduct. On 12 Apr 2004, psychometric testing was completed. There was no change in his diagnosis. He was discharged on 3 May 2004 with diagnoses of Bipolar Disorder, Substance Abuse, and Personality Disorder not otherwise specified (NOS). He was prescribed Venlafaxine, Divalproex, and Quetiapine. A review of JLV indicates the applicant has not received VA services since his discharge. 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. Bipolar Disorder is a mitigating factor for the misconduct that led to his discharge. In addition, based on his hospitalization record the applicant should have been referred to the Disability Evaluation System. Recommend referring the applicant’s case to the Disability Evaluation System for their review and consideration. a. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (a) Yes (2) Did the condition exist or experience occur during military service? (a) Yes (3) Does the condition experience actually excuse or mitigate the discharge? (a) Yes (4) Does the condition or experience outweigh the discharge? (a) Yes ? BOARD DISCUSSION: 1. After review of the application and all evidence, the Board found relief was not 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, notwithstanding the advising official finding documentation to support a behavioral health diagnosis at the time of his discharge. Bipolar Disorder is a mitigating factor for the misconduct that led to his discharge. In addition, based on his hospitalization record the applicant should have been referred to the Disability Evaluation System. Recommend referring the applicant’s case to the Disability Evaluation System for their review and consideration. 2. However, the Board determined there was insufficient evidence of in-service mitigating factors to overcome the patterns of misconduct. The Board noted, the applicant provided insufficient evidence of post-service honorable conduct that might have mitigated the discharge characterization. The Board determined the applicant’s service record exhibits numerous instances of misconduct during his enlistment period over his 2 years, 11 months and 2 days of net active service. The applicant was discharged for misconduct and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. Therefore, the Board denied relief. 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. 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. Title 10, United State Code, section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 3. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. 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 under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 4. On 25?August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; Traumatic Brain Injury; sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to 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. 5. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210015796 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1