IN THE CASE OF: BOARD DATE: 19 October 2022 DOCKET NUMBER: AR20220002810 APPLICANT REQUESTS: His uncharacterized discharge upgraded to under honorable conditions (general) and an appearance before the Board via video/telephone. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter from the Department of Veterans Affairs (VA) - summary of benefits * Medical progress notes 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 his undiagnosed mental health condition led to his discharge and was the direct result of his behavior. He recalls a time that he was in the restroom, and he was triggered by suppressed memories of being sexually assaulted at 14 years old. He refused to train, fearing that he would hurt someone. In 2010, he was diagnosed with schizoaffective disorder, bipolar and Post Traumatic Stress Disorder (PTSD). The VA has applied consideration and found him to be totally and permanently disabled due solely to his service-connected disabilities. 3. The applicant enlisted in the Regular Army on 23 October 2008. Subsequently, he reported to Fort Benning, GA, for Initial Entry Training. 4. On 17 January 2009, the applicant was formally counseled by his immediate commander for disobeying a lawful order from a commissioned officer and a noncommissioned officer and refusing to train. 5. The applicant's immediate commander notified the applicant on 21 January 2009 that he was initiating actions to separate him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 11, for entry level status performance and conduct. As the specific reason, his commander noted the applicant became so belligerent he had to be arrested by Military Police and was subsequently permanently removed from training. 6. The applicant acknowledged receipt of the proposed separation notification on 21 January 2009. He was advised of the reasons for separation and of the rights available to him. He declined the opportunity to consult with counsel and declined to submit a statement in his own behalf. He declined a medical examination before his discharge, and further acknowledged he was not a victim of sexual assault. 7. The applicant's immediate commander formally recommended the applicant’s separation under the provisions of Army Regulation 635-200, Chapter 11. On 23 January 2009, the separation authority approved the recommended discharge and directed the issuance of an entry level separation (uncharacterized). 8. The applicant was discharged on 26 January 2009, under the provisions of Army Regulation 635-200, Chapter 11, for entry level performance and conduct. His DD Form 214 confirms he completed 3 months and 4 days of net active service and his service was uncharacterized. 9. The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge. On 5 May 2010, the ADRB determined that his discharge was both proper and equitable, his request for relief was denied. 10. The applicant provides his VA summary of benefits letter, dated 10 May 2021 with medical progress notes which show he was granted a service-connected disability with a 100 percent (%) rating. 11. Soldiers are considered to be in an entry-level status when they are within their first 180 days of active duty service. The evidence of record shows the applicant was in an entry-level status at the time of his separation. 12. 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. 13. MEDICAL REVIEW: The applicant is applying to the ABCMR requesting his uncharacterized discharge be upgraded to under honorable conditions (general). He contends his misconduct was related to undiagnosed mental health conditions. a. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory February are the following: 1) The applicant enlisted into the Regular Army 23 October 2008; 2) He was formally counseled for disobeying a lawful order on 17 January 2009; 3) He was discharged on 26 January 2009 under provisions of AR 635-200, Chapter 11, for entry level performance and conduct. b. The Army electronic medical record (AHLTA), VA electronic medical record (JLV), and the ROP were reviewed. A review of AHLTA shows the applicant was diagnosed with Adjustment Disorder on 25 January 2009, after being escorted to the Martin ACH Fort Benning by MP’s for failing to comply with lawful orders, refusing to train, and being belligerent. The note shows the applicant stated he didn’t fit it, did not want to be there; he was already in the process of being administratively separated. A review of JLV shows the applicant has a 100 percent service-connected diagnosis of Schizophrenia, paranoid; effective date 27 January 2009. He is also diagnosed with PTSD related to childhood sexual abuse. Records suggest the applicant first engaged the Southern Texas VA on 13 May 2010 for BH related treatment seeking medication. The applicant reported having been recently diagnosed with schizophrenia by a civilian health care provider, and in need of medication. The treating VA provider conducted medication reconciliation and diagnosed the applicant with Schizophrenia by history. A record dated 16 October 2010 shows the applicant was involuntarily psychiatrically hospitalized at the Southern Texas VA, subsequent his father taking him to the emergency department reporting the applicant had been decompensating over the course of the past month. During the applicants inpatient stay, the provider of record noted it appears the applicant suffered his first psychiatric break in 2006 (prior to service) and his second psychiatric break in 2008, approximately 3 months after joining the military. The applicant reported a history of childhood sexual abuse and contends that during basic training he was triggered while in the restroom, leading him to refuse to train for fear of hurting someone. He further contends that after refusing to train he was sent to Echo Company and became paranoid that others within that unit were out to hurt him, leading him to leave and try to blend into another unit’s formation. Since his discharge the applicant has a significant history of inpatient and outpatient treatment for Schizophrenia and PTSD Chronic, and continues to receive treatment currently. c. After reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, it is the opinion of the Agency Behavioral Health advisor that the applicant did have a condition that mitigates his misconduct. A review of the records suggests the applicant had a history of psychosis that existed prior to service (2006), and while in BCT had an experience that potentially contributed to a second psychotic break. Symptoms appear to have manifested in the applicant’s paranoid belief that others in the unit were out to hurt him, which led him to disobey lawful orders to train, and put up his fists in self- defense. d. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? (a) Yes. The applicant is 100 percent service connected with a diagnosis of Schizophrenia, paranoid. (2) Did the condition exist or experience occur during military service? (a) Yes. Record suggests a pre-existing history of at least one psychotic break prior to service and a second during service. (3) Does the condition or experience actually excuse or mitigate the discharge? (a) Partial. The diagnosis does mitigate the misconduct as the applicant appears to have been responding under the paranoid belief that members of the unit meant him harm. However, the history of psychosis appears to have predated military service, and though triggered during service, there is no evidence military service exacerbated the disorder. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief as 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. The governing regulation provides that a separation will be described as an entry-level separation, with service uncharacterized, if the separation action is initiated while a Soldier is in entry-level status. Upon review of the applicant’s petition, available military records and the medical review, the Board notwithstanding the advising official finding the applicant did have a condition that mitigates his misconduct. A review of the records suggests the applicant had a history of psychosis that existed prior to service (2006), and while in BCT had an experience that potentially contributed to a second psychotic break. The Board, however determined the applicant’s condition was pre-existing and determined the applicant did not complete his training and served 3 months and 4 days of net active service. Based on regulatory guidance the applicant’s discharge is appropriate. Therefore, the Board denied relief . 2. An uncharacterized discharge is not derogatory; it is recorded when a Soldier has not completed more than 180 days of creditable continuous active duty prior to initiation of separation. It merely means the Soldier has not served on active duty long enough for his or her character of service to be rated as honorable or otherwise. As a result, there is no basis for granting the applicant's request. 3. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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. 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. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 states 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. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 635-200 sets policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Chapter 3 provides that a separation will be described as entry level with uncharacterized service if the Soldier has less than 180 days of continuous active duty service at the time separation action is initiated. b. Paragraph 3-7a provides that 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. c. Paragraph 3-9 provides that a separation would be described as entry level with uncharacterized service if processing was initiated while a Soldier was in an entry-level status, except when: (1) a discharge under other than honorable conditions was authorized, due to the reason for separation and was warranted by the circumstances of the case; or (2) the Secretary of the Army, on a case-by-case basis, determined a characterization of service as honorable was clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. This characterization was authorized when the Soldier was separated by reason of selected changes in service obligation, for convenience of the government, and under Secretarial plenary authority. d. Chapter 11 provides for the separation of personnel because of unsatisfactory performance or conduct (or both) while in an entry-level status. When separation of a Soldier in an entry-level status is warranted by unsatisfactory performance or minor disciplinary infractions (or both) as evidenced by inability, lack of reasonable effort, or failure to adapt to the military environment, he or she will normally be separated per this chapter. Service will be uncharacterized for entry-level separation under the provisions of this chapter. 4. 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 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. 5. 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. 6. 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//