IN THE CASE OF: BOARD DATE: 4 February 2022 DOCKET NUMBER: AR20210014590 APPLICANT REQUESTS: His under honorable conditions (general) discharge, previously upgraded by the Army Discharge Review Board (ADRB) review on 6 June 2018, be further 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 9 March 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 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, in effect, it has been 10 years since he began asking for help. He has learned his lesson and he regret the decision he made in the past. He has a lot of situations at hand regarding his mental and physical health, which need attending to. He served in Operation Iraqi Freedom (OIF) and Operation Enduring Freedom (OEF) and is deserving of benefits. He should have supporting documents through the Department of Veterans Affairs (VA). His mental health is not the same, he has family members and friends who that have noticed a change in his behavior, and he needs help. All of his comrades have been granted their benefits with the same type of discharge except him, and he does not understand why. 3. The applicant enlisted in the Regular Army on 8 November 2001 4. The applicant served in Southwest Asia from 20020907 through 20030617. 5. A DD Form 2624 (Specimen Custody Document-Drug Testing), dated 14 August 2003, shows the applicant tested positive for Tetrahydrocannabinol (THC) during a unit urinalysis testing conducted on 4 August 2003. 6. The applicant's record is void of documents that show he was referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP). 7. The applicant underwent a mental status evaluation on 22 August 2003. The relevant DA Form 3822-R (Report of Mental Status Evaluation) shows he had normal behavior, was fully alert and oriented, and had clear thought process and normal thought content. The evaluating physician determined he had the mental capacity to understand and participate in any administrative proceedings and he was psychiatrically cleared for any administrative action deemed appropriate by his Command. 8. A Sworn Statement from the applicant, dated 28 August 2003, shows he admitted to smoking marijuana on or about 2300 hours on 2 August 2003, due to feeling stressed. He also stated that he smoked marijuana on or about 22 August 2003. 9. The applicant record is void of the completed facts and circumstances concerning the events that led to his discharge from the Army. However, his record contains a document that shows the separation authority approved his request for discharge on 21 October 2003, under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 10, for the good of the service - in lieu of court-martial, and directed the issuance of an under other than honorable conditions (UOTHC) discharge. 10. The applicant was discharged on 2 December 2003, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service - in lieu of trial by court-martial. The DD Form 214 he was issued confirms he was discharged in the lowest enlisted grade and his service was characterized as UOTHC. 11. The issuance of a discharge under the provisions of Army Regulation 635-200, Chapter 10, required the applicant to have requested from the Army - voluntarily, willingly, and in writing - discharge in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no evidence that would indicate the contrary. 12. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade to his service characterization. The ADRB considered his request on 6 June 2018 and granted relief by upgrading his service characterization from UOTHC to under honorable conditions (general). 13. 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. 14. 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 mental health issues he developed 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) was reviewed as well. The military electronic medical record (AHLTA) was not reviewed as it was not in use during the applicant's time in service. 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 Oct 2001 and subsequently transferred to the Regular Army on 09 Nov 2001. While on active duty, he deployed to Southwest Asia from 07 Sep 2002 - 17 Jun 2003. His duty assignment was Petroleum Supply Specialist. He was awarded the National Defense Service Medal and Army Service Medal. A Report of Mental Status Evaluation, dated 22 Aug 2003 indicated, "soldier states he tested positive for cannabis abuse on a urinalysis." It was determined he met retention standards and was psychiatrically cleared for any administrative action. He was diagnosed with "Cannabis Abuse," c. He initiated a Request for Discharge in Lieu of Trial by Court-Martial on 06 Oct 2003 which was approved. His commander noted on this document, "soldier shows potential to do well post-military. He has been adamant about making ASAP appts." He received an Under Other Than Honorable Conditions discharge on 02 Dec 2003 with DD-214 Reason and Authority for Separation, In Lieu of Trial by Court-Martial. The Army Discharge Review Board later upgraded his discharge to Under Honorable Conditions (General) on 06 Sep 2018 (modified DD-214) as the previous discharge was considered too harsh. d. The VA electronic medical record, Joint Legacy Viewer (JLV) did not indicate any service connected disability(s). A Mental Health Diagnostic Study Note, dated 23 Jan 2020 indicated, "the week of Christmas he put a gun to his head and planned on killing himself. Called his sister...who talked to him and he did not follow through with plan to end his life...Veteran also indicates that on at least 3 previous occasions, he took so much ecstasy that he thought he would die. Uses marijuana daily. Has no access to healthcare/psychiatric medication monitoring. Veteran is self-medicating to deal with severe depressive symptoms and military trauma-related nightmares." A Mental Health Note, also dated 23 Jan 2020 indicated, "Veteran is recently unemployed, facing potential homelessness, has pending legal issues related to DV and back child support, and is struggling with nightmares (burned bodies alongside the road) in Afghanistan and depressive symptoms (poor sleep, poor concentration, low mood)...exposed to multiple stressors in the military. He reported that he gets into altercations frequently and was in anger management in the military." There was no available data on the Problem List. e. 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, trauma and stressor-related symptoms. As there is an association between trauma and stressor-related symptoms 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. 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 trauma and stressor related symptoms in a combat environment. A discharge upgrade is recommended. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation, a medical review and whether to apply clemency. Based upon a preponderance of evidence and guidance for consideration of discharge upgrade requests, the Board determined that the character of service the applicant received upon separation should be corrected as a matter of clemency. 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 reissuing him a DD Form 214 for the period ending 2 December 2003 showing his character of service as Honorable. 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 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. c. Chapter 10 provided that a member who had committed an offense or offenses, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate. 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) AR20210014590 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1