IN THE CASE OF: BOARD DATE: 15 August 2022 DOCKET NUMBER: AR20220001061 APPLICANT’S REQUEST: An upgrade of his under honorable conditions, general 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) * Letter, Department of Veterans Affairs (VA) * VA Summary of Benefits 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 (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 per the VA Summary of Benefits that he provided shows his discharge status is now honorable. He does not have a DD Form 214 to show this change, therefore he is requesting one. He also annotated his application to show that he has other mental health conditions. 3. In support of his application, he provides: a. VA Letter, addressed to whom it may concern, from his Vocational Rehabilitation Specialist, dated 20 October 2016, requesting that his application process be expedited, because he is a homeless veteran trying to get employed. b. VA Summary of Benefits, dated 12 December 2016, showing, he was provided a combined service evaluation of 70 percent, effective 1 December 2016. 4. The applicant served in the Regular Army (RA) honorably from 25 July 1990 to 25 April 1994. He served in Germany from 12 December 1990 to 5 January 1993. He was assigned to Fort Bragg, NC, on 12 February 1993. 5. While assigned to Fort Bragg, on 26 April 1994, he reenlisted in the RA Army for 3 years, for military occupational specialist (MOS) 91S (Preventive Medicine Specialist), and in the rank of specialist four/E-4, which was the highest rank he achieved. 6. General Court-Martial Order 26, shows on 8 November 1995, a general court-martial the applicant pled not guilty to all charges, and he was found guilty of: a. Charge I, Article 128, Specification 1: Committing an assault (assault consummated by a battery) upon Chief Warrant Officer Two (CW2) by striking him in the jaw with a closed fist and who was then known by the applicant to be a commissioned officer of the United States Army. b. Specification 2: Committing an assault upon CW2 by pointing a dangerous weapon at him, likely to produce death or grievous bodily harm, to wit: a firearm. c. Charge II, Article 116, Specification: Causing a breach of the peace by wrongfully striking CW2 with his fist and pointing a firearm at CW2 while the warrant officer was attempting to retreat to his house in the presence of several neighbors. d. Charge III, Article 134, Specification: Unlawfully carrying on his person a concealed weapon, to wit: a pistol. e. On 25 September 1995, the court sentenced him to reduction from E-4 to E-1, to perform 60 days of hard labor without confinement, and 60 days of restriction. The convening authority approved the findings and the sentence as adjudged. 7. On 22 January 1996, the applicant underwent a mental status evaluation. This evaluation determined there was no evidence of any psychiatric illness. He was psychiatrically cleared for any administrative actions deemed appropriate by his chain of command. 8. On 27 February 1996, a medical examination found the applicant qualified for separation. 9. On 29 March 1996, the applicant's immediate commander advised him of his intent to separate him under, AR 635-200 (Personnel Separations – Enlisted Personnel), chapter 14-12c (Commission of a Serious Offense) with a general discharge. The reason cited for this proposed action was that he assaulted CW2 at his home on 8 July 1995. a. The applicant acknowledgement notification on the same date. b. The applicant’s company commander recommended the applicant’s separation prior to his expiration term of service under paragraph 14-12c, AR 635-200, due to commission of a serious offense. The commander stated the applicant clearly had no potential for useful service under conditions of full mobilization. His misconduct indicated he was not the type of Soldier that would benefit the unit during deployment. c. His intermediate commander recommended approval of his separation under paragraph 14-12c, AR 635-200, due to commission of a serious offense, with a general discharge. d. The separation authority approved the commander's recommendation and directed the applicant’s separation from the Army under paragraph 14-12c, AR 635-200, due to commission of a serious offense, with a general discharge. 10. Accordingly, on 2 May 1996, he was discharged. His DD Form 214 shows he completed 5 years, 9 months, and 8 days of net active this period. His wards are listed as the Army Achievement Medal (3rd Award), National Defense Service Medal, Army Service Ribbon, Overseas Service Ribbon, and Parachutist Badge. His DD Form 214 also reflects in: * Remarks – Continuous Honorable Active Service “19900725 – 19940425” * Character of Service – “Under Honorable Conditions, General” * Separation Authority – AR 635-200, Paragraph 14-12c * Narrative Reason for Separation – “Misconduct” 11. AR 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. It provides: a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. Action was to be to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or unlikely to succeed. 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 Uniform Code of Military Justice (UCMJ). 12. He provided a VA Letter requesting that his application process be expedited. He is a homeless veteran trying to obtain employment. He also provided a VA Summary of Benefits showing, he was provided a combined service evaluation of 70 percent, effective 1 December 2016. His submissions were provided to the Board in its entirety. 13. The applicant argues that based on his VA Summary of Benefits his discharge status is considered honorable by the VA and he is requesting a DD Form 214 to show this change. He also annotated his application to show that he has other mental health conditions. However, the available evidence makes no reference to other mental health conditions. 14. He completed honorable RA service from 25 July 1990 to 25 April 1994. He reenlisted on 26 April 1994 and served until he was discharged on 2 May 1996 under the provisions paragraph 14-12c, AR 635-200, for commission of a serious offense, with a general discharge. Due to commission of assault and battery. He completed 5 years, 9 months, and 8 days of active military service. 15. 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. 16. 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 his submissions in support of the petition. 17. 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) were not in use during his time in service. His military hardcopy medical record was not available for review. A review of JLV indicates the applicant was psychiatrically evaluated on 8 Mar 2021. He reported daily use of marijuana since age 15. He reported a history of cocaine, has and Xanax (not prescribed) abuse. He reported being seen for depression in the service but denied any other psychiatric diagnoses or treatment. He reported hearing voices that tell him he is inadequate and to harm himself. The psychiatrist noted the applicant did not appear preoccupated nor responding to internal stimuli. He noted the applicant related with him and there was no evidence of major mood or psychotic disorder. The applicant was diagnosed with Cannabis Dependence and Personality Disorder, not otherwise specified (NOS). The psychiatrist recommended reevaluation after a period of no drug use. His next psychiatric appointment was 8 Sept 2006. He was diagnosed with Adjustment Reaction. On 17 Oct 2006, he was diagnosed with Cannabis induced Psychosis, NOS and Mood Disorder, NOS. He reported that Trazadone 100mg (for sleep) and Seroquel 50mg (for mood) were effective. On 30 Jan 2007, he reported discontinuing medication, continued use of marijuana, and stated he was no longer hearing voices. He did not return to behavioral health until 13 Oct 2011 and was seen for an intake. He reported working full time for Enterprise car rental. He reported marital problems. His wife said she will divorce him if doesn’t get on medication. His wife reports he has mood swings with rapid cycling highs and lows. He reported continued use of marijuana. He was diagnosed with Cannabis Dependence, Psychotic disorder, NOS and need to rule out Schizoaffective Disorder, bipolar type and Cannabis induced psychotic disorder. He did not return for follow up until 26 Mar 2012. He reported inconsistent compliance with medication. He reported his mood as stabilized. His psychiatrist adjusted medication to taper off Abilify while increasing Seroquel. Treating diagnoses were Psychotic Disorder, NOS, Bipolar Disorder, NOS, Cannabis Dependence. His records include some encounters with diagnoses of undifferentiated schizophrenia, Antisocial Personality Disorder. However, his treating diagnoses since 2017 has been Schizoaffective Disorder, bipolar type and Cannabis Dependence/Abuse. He received a service connected disability for Psychosis effective 22 Feb 2013. His rating was increased to 70% effective 1 Dec 2016 and to 100% effective 27 Oct 2021. A review of his service record indicates the applicant completed a separation physical and a mental status evaluation and met retention standards. 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. Schizoaffective Disorder nor Psychosis Disorder, NOS are not mitigating factors for the misconduct that led to his discharge. His psychosis symptoms were a voice telling him he was inadequate, he did not have any persecutory or command hallucinations. 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) 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 not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the frequency and nature of the misconduct and the reason for separation and concurred with the with the review and conclusion of the Agency Behavioral Health Advisor. The Board found insufficient evidence of in-service mitigating factors to overcome the misconduct and the applicant provided no evidence of post-service achievements or letters of reference to weigh in support of a clemency determination. Based on a preponderance of evidence available for review, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 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. AR 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. It provides: a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. Action was to be to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or unlikely to succeed. 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. 4. Appendix 12 (Maximum Punishment Chart), Manual for Courts-Martial shows the maximum punishments include punitive discharges for violating the following articles of the UCMJ: Article 128 (Assault Consummated by a Battery), and Article 134 (currently) Article 114 carrying a concealed weapon. 5. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions 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. 6. 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. 7. 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) AR20220001061 1 ARMY BOARD FOR THE CORRECTIONS OF MILITARY RECORDS RECORD OF PROCEEDINGS 1