IN THE CASE OF: BOARD DATE: 15 February 2022 DOCKET NUMBER: AR20210013349 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge, and correction of his record by removing documentation related to his arrest on 23 January 1992, at the Presidio of San Francisco, and subsequent charges. 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 16 April 2021, with a self-authored statement * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 2 July 1993 (copies 2 and 4) 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 is seeking the removal of the records related to a 23 January 1992 arrest and charge for aggravated assault and wrongful possession of marijuana, while he was serving at the b. It was his understanding that the event had been resolved. Unfortunately, he found it to be otherwise when he applied for assistance in . Currently, he is requesting a correction of his record to reflect his actual status of service. c. He served honorably prior to his return from service in support of Operations Desert Shield and Desert Storm. He was not himself, and made an error in judgment. He was charged with assault and possession of marijuana. After serving in the war, he had become a different person. He is no longer that person, and he is continually participating in Department of Veterans Affairs (VA) programs that assist him with understanding the effects of war, which included his wife leaving him. d. After several years, he has finally found peace with woodworking. Woodworking has provided him with an outlet for stress and has allowed him to have a modest supplement to his livelihood as well. e. After all he has experienced, he has no desire to complicate his life. It is his desire to have this situation resolved so he can continue living in peace and focusing on the future. 3. On his DD Form 149, the applicant notes post-traumatic stress disorder (PTSD) as a contributing or mitigating factor in the circumstances that resulted in his separation. 4. Following prior service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 26 November 1986. He reenlisted in the Regular Army on 9 October 1990 and he served in Southwest Asia, in support of Operations Desert Shield and Desert Storm. 5. The applicant accepted nonjudicial punishment (NJP) on 4 March 1993, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongfully using marijuana on or between 20 December 1992 and 20 January 1993. 6. The applicant was afforded a mental status evaluation on 19 February 1992. The attending physician stated: * the applicant met retention standards * there was no psychiatric disease or defect warranting disposition through medical channels * from a psychiatric point of view, the applicant individual demonstrated motivation for continued service and there appeared to be sufficient basis to warrant rehabilitative efforts by Command * the applicant was psychiatrically cleared for any administrative action deemed appropriate by Command 7. The applicant submitted a request for retention on 25 February 1993, wherein he stated: a. Never during his military career has he used illicit drugs and the charge of a positive urinalysis has added tremendous stress, anxiety, and turmoil to his life. He has been exposed to marijuana and knows of the effects it has and the Army's policies and consequences of its use. b. He is a hardworking, diligent, and positive Soldier. He is always on a time for formation, his tour of duty, and accountability to his supervisors. In his opinion, with his ability and skills, he is a great asset to his unit and the Army. 8. The applicant's command was notified of positive test results on a random drug urinalysis that included a positive finding for the applicant's sample. The applicant and his counsel challenged the test findings; however, those challenges were found to not be sufficient to invalidate the results. 9. The applicant's immediate commander notified the applicant on 7 May 1993 of his intent to initiate action to separate the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, by reason of a positive urinalysis for marijuana use. The commander was recommending he be separated under other than honorable conditions (UOTHC) and advised him of the consequences of a UOTHC discharge. The commander also advised the applicant of his rights including his right to submit a conditional waiver and to submit any statements in his own behalf. The applicant acknowledged receipt of the notification on 7 May 1993. 10. The applicant consulted with legal counsel on 7 May 1993 and was advised of the contemplated action to separate him for misconduct under Army Regulation 635-200, Chapter 14, and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights. He acknowledged his understanding that he was entitled to have his case considered by an administrative separation board because he would have six or more years of active and reserve service at the time of separation. a. He voluntarily waived consideration of his case by an administrative separation board, contingent upon receiving a characterization of service or description of separation no less favorable than under honorable conditions. b. He acknowledged his understanding that if he received a general discharge, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and he could be deprived of his rights and benefits as a Veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life. c. He submitted a statement in his own behalf, wherein he stated he was aware of the allegations against him and sincerely regretted the way in which they had tainted his character. He outlined his career and noted his service in the Persian Gulf. He indicated had spent a lifetime of always trying to do the right thing and was aware that he must be punished. He was already facing discharge under Chapter 14 and requested to not also be stigmatized for the rest of his life with an other than honorable discharge. 11. The separation authority approved the requested conditional waiver and discharge recommendation on 3 June 1993. He directed the applicant be issued a general discharge. 12. The applicant was discharged on 2 July 1993. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c (2) and his service characterization was general (under honorable conditions). The DD Form 214 also shows: * he had a total of 11 years, one month, and 12 days of active and inactive service * his awards included the Army Achievement Medal (2nd Award), Army Good Conduct Medal (2nd Award), Southwest Asia Service Medal with two bronze service stars, and Valorous Unit Award * he had an immediate reenlistment for the period "861136-901008" * his narrative reason for separation is shown as "Misconduct - Abuse of illegal Drugs" 13. A DD Form 215 was issued on 30 June 2004, which amended his DD Form 214 by adding the Kuwait Liberation Medal (Kuwait) and Kuwait Liberation Medal (Saudi Arabia). 14. The available record does not include evidence of a 23 January 1992 arrest for or a charge of aggravated assault and wrongful possession of marijuana. 15. The Army Review Boards Agency Case Management Division requested the applicant provide medical records supporting his diagnosis or treatment for PTSD. No reply to this request is of record. 16. The Board should consider the applicant's statement in accordance with the published equity, injustice, and clemency determination guidance. 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. 17. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military records. The Armed Forces Health Longitudinal Technology Application (AHLTA), Federal Electronic Health Record (FEHR) & Health Artifacts Image Solutions (HAIMS) was not in use at the time of his service. His hardcopy military medical records were not available for review. The applicant check the PTSD block on his application indicating PTSD was an issue related to his request. No medical records were provided for review. A review of JLV indicates the applicant has received a service connected disability rating for Fibromyalgia effective 25 Nov 1995 which was increased to 40% effective 27 Mar 2003. His other rating conditions including 30% for flat foot condition, 30% for knee prosthesis, 10% for limited motion of ankle, and 10% for limited motion of wrist, 10% for anemia, and 10% for tinnitus. He does not have a service connected disability rating for any psychiatric diagnoses. His treatment records show diagnoses of Other Recurrent Depressive Disorder, Cannabis Abuse, and Cocaine Abuse. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is no documentation to support a behavioral health diagnosis at the time of his discharge. There is no documented psychiatric condition to consider with respect to mitigation of the misconduct that resulted in his discharge. a. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (a) No (2) Did the condition exist or experience occur during military service? (a) N/A (3) Does the condition or experience actually excuse or mitigate the discharge? (a) N/A (4) Does the condition or experience outweigh the discharge? (a) N/A, he was honorably discharged BOARD DISCUSSION: 1. The Board carefully considered the applicants request, supporting documents, evidence in the records, a medical review and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the medical records and the review and conclusions of the reviewing official. The Board concurred with the medical reviewer finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. One possible outcome was to upgrade the discharge characterization based upon the social acceptance of marijuana use. However, based on a preponderance of evidence, the majority of the Board determined that the character of service the applicant received upon separation was not in error or unjust and that relief was not warranted. 2. No evidence of an arrest is in the applicant’s official military personnel file. His request may be a titling issue that he must apply for relief through the U.S. Army Criminal Command (CID) before applying to this Board. 3. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to depict the military service of the applicant more accurately BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: Except for the correction addressed in Administrative Note(s) below, the Board found 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): A review of the applicant's record shows his DD Form 214, for the period ending 2 July 1993, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries to item 18 (Remarks): * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 861126 UNTIL 901008 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 600-37 (Unfavorable Information) policies regarding unfavorable information considered for inclusion in official personnel files. It provides for: * placement of unfavorable information about Army members in individual official personnel files * ensures that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files * ensures that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files 4. This regulation also states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. 5. 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 Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 (Separation for Misconduct) establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. Paragraph 14-12c (Commission of a Serious Offense) applied to Soldiers who committed a serious military or civilian offense, when required by the specific circumstances warrant separation and a punitive discharge was, or could be authorized for that same or relatively similar offense under the UCMJ. 6. 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. 7. 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. 8. 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. 9. 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.) AR20210013349 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1