IN THE CASE OF: BOARD DATE: 1 December 2022 DOCKET NUMBER: AR20220005395 APPLICANT’S REQUEST: an upgrade of his general discharge under honorable conditions to an honorable character of service. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Army Discharge Review Board) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 while he was on active duty he incurred injuries but feels his chain of command pushed him out of the service; he did not want to leave the Army, but he believed with his injuries, he had no choice. 3. A review of the applicant's service record shows: a. On 1 April 2004, the applicant enlisted in the Regular Army; his enlistment packet is unavailable for review. Upon completion of initial entry and airborne training, and the award of military occupational specialty 92G (Food Service Operations), orders transferred him to a field artillery battalion in Germany, and he arrived at his unit on 19 October 2004. b. Between 25 January and 28 February 2005, the applicant's leadership counseled him twice, using a DA Form 4856 (Developmental Counseling Form). (1) 25 January 2005 – Sergeant (SGT), the applicant's section chief, wrote, the day prior, he had observed the applicant correcting a Soldier who works in the ration room; SGT, the Rations Noncommissioned Officer (NCO) told the applicant he would resolve the matter and admonished the applicant for correcting his Soldier. Immediately thereafter, the applicant told SGT J, "F__ you...get off my n__ts." When SGT tried to intervene, the applicant said the same thing to him. As it happened, the battery commander was present and heard everything. (2) 28 February 2005 – SGT, the Rations NCO, counseled the applicant after the applicant initiated a verbal argument with him; SGT had instructed the applicant to put down plates, and the applicant told SGT to "F__ off." Later, SGT overheard the applicant talking about him to another Soldier, and when SGT confronted the applicant, the applicant responded with "get my b__s out of your mouth." When SGT stepped in, the applicant told SGT to "F__ off." c. Effective 1 March 2005, the applicant's chain of command promoted him to private first class (PFC)/E-3. d. Between 25 March and 31 May 2005, the applicant's leadership issued him five more DA Forms 4856. (1) 25 March 2005 – SGT counseled the applicant when he discovered the applicant had added tattoos of a NAZI eagle and swastika to his arm. After advising the applicant that having the tattoos violated Army Regulation (AR) 670-1 (Wear and Appearance of Army Uniforms and Insignia) and telling the applicant he would need to have them removed, the applicant refused. (2) 29 March 2005 – First Lieutenant (1LT) (Promotable) counseled the applicant for violating AR 670-1; after returning from emergency leave in the United States, the leadership learned the applicant had placed tattoos of the NAZI eagle and swastika on his forearm. 1LT informed the applicant that having extremist, indecent, racist tattoos on the body, regardless of location, violated AR 670-1 and AR 600-20 (Army Command Policy), and, if he did not have the tattoos removed, the command could initiate Uniform Code of Military Justice (UCMJ) and/or separation action against him. (3) 30 March 2005 – SGT counseled the applicant after the applicant told SGT he wanted to commit suicide; when SGT tried to talk to the applicant, the applicant shoved him away, and the applicant ran back to the ration room and punched the serving line door. The leadership placed the applicant under suicide watch and resolved to get help for the applicant the next day. (4) 14 April 2005 – Staff Sergeant (SSG) notified the applicant that the applicant could be considered for separation, based on his behavior; earlier that day, SSG was conducting a team meeting, and he noticed the applicant had dozed off. After SSG asked the applicant to stand up for him to regain his composure, the applicant muttered something under his breath; SSG asked the applicant to repeat what he had said, and the applicant responded that he was getting out of the military, and he would be leaving the dining facility. (5) 31 May 2005 – SGT counseled the applicant for failing to report to work on time. e. On 2 August 2005, the applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15, UMCJ, because, on 20 June 2005, the applicant had used disrespectful language towards SGT ; following a closed hearing and a finding of guilty, the imposing commander's punishment included reduction to private (PV2) E-2. f. On 29 September 2005, an Army psychiatrist gave the applicant mental status evaluation (DA Form 3822-R); he noted the applicant had been referred due to a pending administrative separation action, under AR 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-13 (Separation for Personality Disorder). Although the psychiatrist found the applicant met the medical retention standards in AR 40-501 (Standards of Medical Fitness), he noted the following: (1) "He has been undergoing mental health care since Nov 04 and has been seen at LRMC (Landstuhl Regional Medical Center) Psychiatric Clinic with no improvement in symptoms or performance. This Soldier has a pre-existing personality disorder that effects (sic) his perception and reaction to himself and others and interferes with his duty performance. Two prior mental health providers have seen this Soldier and recommended separation under CHPT 5-13 (sic, chapter 5 (Separation for Convenience of the Government), paragraph 5-13). I agree. It is also my recommendation that he receive a chapter 5-13 discharge. Upon review of his counseling statements, it is evident that this Soldier has been and will continue to be a problem for command." (2) "Based on this evaluation, the diagnostic impressions, within the meaning of AR 40-501 and the Diagnostic Statistical Manual (DSM IV), are as follows: AXIS I – Dysthymic Disorder; AXIS II – Personality Disorder, NOS; AXIS III – None." g. On 21 October 2005, the Food Operations Sergeant (SSG ) counseled the applicant after the applicant used disrespectful language towards him. (1) On 20 October 2005, SSG had instructed the applicant to clean the ration room, and the applicant replied, "I'm not cleaning sh_t; I'm not on rations anymore." When SSG told the applicant that, if the applicant was not going to do anything, he could leave, the applicant replied, "F__k you, you're an a__hole" and complained that his NCO leadership was trying to screw up his marriage. (2) SSG had the applicant go to his room to cool off, and when he called the applicant back, he told the applicant he would be working both shifts in the ration room; the applicant refused to do anything and stated he just wanted to go home with his wife. SSG told the applicant "everyone has tried to convince her (the applicant's wife) to come (but) she doesn't want to, and we can't make her." (3) The applicant started cursing and saying the chain of command was "sitting on my chapter paperwork" and the applicant added he just wanted to go home. SSG commented the applicant would just have to wait until the paperwork was approved, but in the meantime, the applicant would need to do his job; at that point the applicant "flipped out" and kept cursing and screaming. SSG asked the Staff Duty NCO to call the military police, at which point, the applicant struck a "3-level stacker" with his fist and started to come around the desk toward SSG ; Sergeant (SGT) stepped in and removed the applicant from SSG 's office. h. On 2 November 2005, the applicant underwent a separation physical. (1) The examining medical authority (a Family Nurse Practitioner (FNP)) indicated the applicant was qualified for separation and listed the applicant's physical profile as all "1s" (high level of medical fitness), except for a "3" (one or more medical conditions requiring significant limitations) under upper extremities and a "2" (a medical condition that may require some activity limitation) for the "S" profile factor (psychiatric). (2) Under item 73 (Notes), the FNP wrote: (a) "HX of Depression/Anger Management issues and inpatient psychiatric care as child. Continues c? psychiatric care/personality disorder/depression." (b) "Multi-skeletal issues: Bilat knee/LBP/? shoulder p? trauma from Airborne School – has had extensive care in Ortho/Physical Therapy for same." (3) In item 77 (Summary of Defects and Diagnoses): (a) "DX since childhood c? personality disorder (Anger Management, Depression), continues c? same." (b) "Airborne accident Sep 04 – c? injury ? shoulder/LBP/Bilat knee; continue c? physical therapy treatment and permanent profile from Ortho for same." i. On 1 December 2005, the applicant accepted NJP for three violations of UCMJ Article 91 (Insubordinate Conduct toward an NCO by Willful Disobedience of an Order or Contempt/Disrespect); the misconduct had occurred, on 20 October 2005: (1) The applicant's commander charged the applicant with willfully disobeying SSG 's order to clean the ration room; using disrespectful language toward SSG ; and showing disrespect in deportment toward SSG . (2) After a closed hearing, where the applicant spoke in his own behalf, the commander found the applicant guilty, and the punishment included reduction to private (PV1)/E-1. j. On 4 February 2006, the applicant's company commander advised him, via memorandum, that he was initiating separation action against the applicant, under the provisions of AR 635-500, chapter 14 (Separation for Misconduct), paragraph 14-12b (A Pattern of Misconduct). (1) The commander stated his reasons were the following: * On 24 January, 25 February, 14 April, 20 June, and 20 October 2005, the applicant was disrespectful towards his NCO in language or deportment * On 31 May 2005, the applicant had failed to report to his appointed place of duty at the time prescribed, and, on 20 October 2005, the applicant willfully disobeyed his NCO's lawful order (2) The commander further indicated his intent to recommend the applicant receive a general discharge under honorable conditions, but the final decision rested with the separation authority. k. On 9 February 2006, after consulting with counsel, the applicant acknowledged counsel had informed him of the basis for the contemplated separation and advised him of his rights and the effects of waiving those rights. The applicant indicated he would not submit statements in his own behalf. l. On 22 February 2006, the separation authority approved the commander's separation recommendation and directed the applicant's general discharge under honorable conditions; on 11 March 2006, orders discharged the applicant accordingly. The applicant's DD Form 214 shows he completed 1 year, 11 months, and 11 days of net active duty service; (the length of the applicant's enlistment is unknown, due to the lack of an enlistment packet). Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) lists the following: Army Achievement Medal, National Defense Service Medal, Global War on Terrorism Service Medal, and Army Service Ribbon. 4. 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. 5. 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. 6. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting a discharge upgrade and, in essence, a referral to the Disability Evaluation System. He states: “I was injured and felt as I was being pushed out of the service. I did not want to leave service but due to my injuries felt I had no choice.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 shows he entered the Regular Army on 1 April 2004 and was discharged under honorable conditions (general) on 11 March 2006 under the separation authority provided by paragraph 14-12b of AR 635-200, Personnel Separations – Enlisted Personnel (1 November 2000): Pattern of Misconduct. It does not show a period of service in a hazardous duty pay area. c. On 25 January 2005, the applicant was counseled on an act of insubordination toward an NCO and an act of failure to obey an order or regulation. He was counseled on 28 February 2005 for disobeying a lawful order. The applicant was counseled on 25 March 2005 after obtaining a tattoo of a Nazi eagle and swastika on his right forearm and failing to have it removed. His company commander likewise counseled the applicant on 29 March 2005 and he was ordered to have it removed at no expense to the Soldier. d. The applicant continued to acquire negative counseling statements and two Article 15s. e. On 26 January 2006, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, AR 635-200, for reason of a pattern of misconduct. He lists the reasons for his action: “On 9 May 2005, you absented yourself from your unit and did not return until 30 May 2005. On 19 June 2005, 2 July 2005 and 2 November 2005, you were derelict in the performance of your duties. On 19 June 2005, you disobeyed a lawful order. On 19 September 2005, you were disrespectful in language towards SSG . On 22 October 2005, you failed to report to your appointed place of duty.” f. The applicant acknowledged the notification 9 February 2006. The recommended separation action was approved by the brigade commander on 22 February 2006. g. Review of his AHLTA encounters show he was first evaluated for left shoulder pain on 13 June 2005. Following his evaluation, the orthopedic surgeon diagnosed the applicant with rotator cuff tendonitis, acromioclavicular joint arthritis, and pre- existing/congenital atraumatic multidirectional instability. This was treated with physical therapy. h. The applicant was seen by psychiatry on 9 September 2005, after which he was diagnosed with marital problem and personality disorder: “24-year-old married father active duty 92G food service geographically isolated from his wife who doesn't want to come to Germany. Soldier reports admissions and long-term problems with depression and suicidal thoughts though he does not currently have these. Has been being treated for past year at DMHS and here at Landstuhl was referred twice for CHPT 13s for personality disorder here for third eval now. Has history of multiple problems with command including insubordination and now reports depression hopelessness, lowered self-esteem crying easily, loneliness, sleeping only 2-3 hours per night and goes without sleep for days in a row but denies manic symptoms. Difficulty concentrating, anger, guilt, nightmares, arguing, financial problems and thoughts of SI/HI {suicidal ideation/homicidal ideation} as well as going AWOL {absent without leave}.” i. The psychiatrist also completed a mental status evaluation on 9 September 2005 on which he diagnosed with applicant with dysthymic disorder and personality disorder not otherwise specified. j. He was evaluated by psychology on 20 October 2005: “Patient has previously been treated by LRMC {Landstuhl Regional Medical Center} psychiatry and has a history of depressed mood and personality disorder. Patient reported getting into two conflicts with his supervisor and in the last one he punched walls, broke a plastic mailbox, and had to be separated from his supervisor. Patient verbalized that he was 'irate' and if he had the chance he would go after his supervisor. Patient denied current SI but admitted to occasional SI and to depressed mood at present. Patient has a history of verbal aggression, being disrespectful, and using poor judgment with his chain of command. Patient's current life stressors include a wife and two small children at home who are having difficulty meeting their needs on his income. Chapter proceedings (5-13) {separation for personality disorder} have been initiated and supporting documentation has been provided by three different MH providers over past 5 months.” k. The applicant was admitted to the hospital later that day, and his 31 October 2006 psychiatry encounter shows he was admitted for 6 days: “Released from 9C after a 6-day admission 20-26 Oct. Released in improved condition, still awaiting possible Article 15 for violence and threats. Started on Remeron with unclear effect so far. Chapter separation already recommended by several providers (., and ). At this time, appears calm and cooperative, eagerly awaiting separation. Taking meds and accepts he must allow Remeron a few more weeks to assess its benefits. Keeping a low profile so far.” l. After undergoing his pre-separation examination on 29 November 2005, he was found qualified for separation. m. At his final orthopedic evaluation on 1 January 2006, his final diagnoses were left shoulder pain (probable labral lesion), bilateral patellofemoral syndrome, and mechanical low back pain. The orthopedic surgeon noted there were no surgical indications at that time and discussed home versus supervised physical therapy with the applicant. n. There is no evidence the applicant had any medical condition which would have failed the medical retention standards of chapter 3 of AR 40-501, Standards of Medical Fitness, prior to his discharge. Thus, there was no cause for referral to the Disability Evaluation System. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. o. Review of his records in JLV shows he has been awarded multiple VA service- connected disabilities, none of which are based on a mental health diagnosis. However, the DES compensates service members for conditions incurred during or were permanently aggravated by their military service when they cause or contribute to career termination, not after an administrative discharge. It has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions incurred during their Service. These roles and authorities are granted by Congress to the Department of Veterans' Affairs and executed under a different set of laws. p. It is the opinion of the Agency medical advisor that neither a discharge upgrade nor a referral of his case to the Disability Evaluation System is warranted. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense 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 applicant's claim regarding his health and the review and conclusions of the ARBA Medical Advisor. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by any medical conditions. Based on a preponderance of evidence, the Board determined 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-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 (Ex Parte Communications Prohibited) 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. AR 635-200, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and duty performance. b. Chapter 14 (Separation for Misconduct) addressed separation for misconduct, to include for a pattern of misconduct and the commission of a serious offense. (1) Paragraph 14-12b stated members were subject to separation under this provision when they showed a pattern of misconduct involving acts of discreditable involvement with civil or military authorities, and/or displayed conduct that was prejudicial to good order and discipline. (2) 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 such is merited by the Soldier's overall record. 4. 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. 5. 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) AR20220005395 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20220005395 1 ABCMR Record of Proceedings (cont) AR20220005395 1