IN THE CASE OF: BOARD DATE: 21 September 2022 DOCKET NUMBER: AR20220003642 APPLICANT’S REQUEST: The applicant requests his under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Applicant for the Review of Discharge from the Armed Forces of the United States) * Department of Veterans Affairs (DVA) Form 21-0960P-2 (Mental Disorders (Other than Post-Traumatic Stress Disorder (PTSD) and Eating Disorders) Disability Benefits Questionnaire) * Letter from the Army Review Boards Agency (ARBA) 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 or the Army Board for Correction of Military Records (ABCMR). 2. The applicant states, in effect, his discharge should be upgraded because his misconduct was directly related to an undiagnosed mental disorder. 3. The applicant enlisted in the Regular Army on 8 July 1993, for a period of 6 years. Upon completion of training, he was awarded military occupational specialty 67U (Helicopter Repairer). 4. The applicant's record is void of documentation showing the facts and circumstances regarding his administrative separation under the provisions of Army Regulation 635- 200 (Personnel Separations – Enlisted Personnel), Chapter 14, Paragraph 14-12c (2). However, Orders 280-0013 issued by Headquarters, Fort Carson, Fort Carson, Colorado on 7 October 1997 and his DD Form 214 (Certificate of Release or Discharge from Active Duty) show he was involuntarily discharged on 9 October 1997, for misconduct in the rank/grade of Private/E-2. His DD Form 214 shows in: a. block 12 (Record of Service) – He completed 4 years, 3 months, and 2 days of net active service this period. b. block 13 (Decorations, Medals, Badges, Citations and Campaign awarded or authorized) - He was awarded or authorized the: Army Achievement Medal (2nd Award), Army Lapel Button, Army Service Ribbon, Overseas Service Ribbon, and Aircraft Crewman Badge. c. block 18 (Remarks) - He had not completed his first full term of service. d. block 24 (Character of Service) - His characterization of service was Under Honorable Conditions (General). e. block 25 (Separation Authority) - The authority for his separation was Army Regulation 635-200, Chapter 14, paragraph 14-12c (2). f. block 26 (Separation Code) - His SPD code was "JKK." g. block 27 (Reentry Code) - His reentry eligibility (RE) Code as "3." h. block 28 (Narrative Reason for Separation) - His reason for separation as "Misconduct." 5. The applicant's record is void of evidence that he was diagnosed with any behavioral health or medical condition during his period of service. 6. The applicant provides a DVA Form 21-0960P-2, dated 12 October 2019, which shows he was diagnosed, in part, with: * Schizoaffective Disorder, Chronic with Depressive Features * Generalized Anxiety Disorder * Somatic Symptom Disorder, with Depressive and Anxious features 7. 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. 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; however, the separation authority may direct a general discharge if merited by the Soldier's overall record. 8. 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 available record shows the applicant was discharged having completed 4 years, 3 months, and 5 days of net service toward his 6-year commitment in the Regular Army. The record is void of and he has not provided evidence that his misconduct was a direct result of a medical condition he suffered from during his service. b. 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. 9. MEDICAL REVIEW: The applicant requests his under honorable conditions (general) discharge be upgraded to an honorable discharge. He contends his discharge should be upgraded because is misconduct was directly related to an undiagnosed mental disorder. a. Based on the applicant’s petition referring to behavioral health diagnoses, the agency psychologist was asked by the ABCMR to review this request. Documentation reviewed includes the ABCMR Record of Proceeding (ROP), the applicant’s completed DD149 and supporting documentation, and his military separation packet. The VA electronic medical record, Joint Legacy Viewer (JLV) was also reviewed. The military electronic medical record (AHLTA) was not reviewed as it was not in use during his time in service. No hard copy civilian or military medical records were provided for review. b. A review of the medical record appears to show the applicant has service- connected rating of 10 percent for Tinnitus and 30 percent for facial scars. The applicant does not appear to be service-connected for a behavioral health (BH) diagnosis and there is no indication in the record that the applicant received BH treatment while on active duty. Records show the applicant began receiving BH treatment at the Houston VA on 18 April 2011 where he was diagnosed with panic disorder w/agoraphobia. Over the course of receiving BH treatment the applicant was subsequently diagnosed with poly-substance use disorder, Major Depressive Disorder, and Mood Disorder unspecified. Included in the applicant’s packet is a Form VA Form 21-0960P-2 (Mental Disorders Other Than PTSD and Eating Disorders Disability Benefits Questionnaire) showing he was also diagnosed with Schizoaffective Disorder, Chronic w/Depressive Features; Generalized Anxiety Disorder; and Somatic Symptom Disorder w/Depressive and Anxious features. The provider completing the questionnaire notes “the veteran’s schizoaffective disorder and generalized anxiety disorder are more likely than not due to his current service-connected activities”. As mentioned elsewhere in this document, it appears the applicant is service-connected for Tinnitus and Facial Scaring. The provider did not further detail what was meant by “current service-connected activities”. The applicant contents his misconduct was directly related to his diagnoses, however there is no documentation or evidence the condition or related symptoms existed while in service and the applicant’s record is void of documentation showing the facts and circumstances surrounding his administrative separation under AR 635-200, Chapter 14-12c. c. Questions (1) Did the applicant have a condition(s) or experience(s) that may excuse or mitigate the discharge?? (a) Yes. The applicant has a current diagnosis of schizoaffective disorder. ???? (2) Did the condition(s) exist, or experience(s) occur during military service? (a) No. While the applicant has a current diagnosis of schizoaffective disorder, documentation DOES NOT support the condition, or related symptoms, existed in-service. ???? (3) Does the condition(s) or experience(s) excuse or mitigate the discharge??? (a) ?No. There is no indication the applicant had a psychiatric condition in- service leading to the basis for separation. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that 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, the Board concurred with the medical opinion finding no documentation or evidence the condition or related symptoms existed while in service and the applicant’s record is void of documentation showing the facts and circumstances surrounding his administrative separation. He 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. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING TLS KJS JFT 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, U.S. Code (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. Title 10, USC, Section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by 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 15-185 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 has occurred by a preponderance of the evidence. It is not an investigative body. The ABCMR considers individual applications that are properly brought before it. In appropriate cases, it directs or recommends correction of military records to remove an error or injustice. 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. Paragraph 3-7b states 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 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). 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; however, the separation authority may direct a general discharge if merited by the Soldier’s overall record. 5. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the separation codes to be entered on the DD Form 214. This regulation prescribed that the separation code "JKK" was the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 14, based on misconduct, commission of a serious offense. Additionally, the SPD/RE Code Cross Reference Table established that RE code "3" was the proper reentry code to assign to Soldiers separated under this authority and for this reason. 6. 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. 7. 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. 8. 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) AR20220003642 1 ABCMR Record of Proceedings (cont) AR20220003642 1