IN THE CASE OF: BOARD DATE: 27 February 2023 DOCKET NUMBER: AR20220008296 APPLICANT REQUESTS: . upgrade of his general, under honorable conditions discharge to honorable . a change of the narrative reason for separation to a more favorable designation . restoration of his grade/pay grade APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: . DD Form 149 (Application for Correction of Military Record), 21 June 2022 . DD Form 214 (Certificate of Release or Discharge from Active Duty), 15 September 2004 . Veterans Administration (VA) Rating Decision, 5 November 2007 . (College), , Bachelor of Science Diploma . (College), Transcripts, 2007-2009 . VA Rating Decision, 17 November 2015 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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: a. During service he sustained a right tibia injury requiring surgery. He experienced mental and physical difficulties restricting his ability to perform his duties satisfactorily. He suffered from chronic pain, mobility issues, sleep impairment, impaired judgement, anxiety, and depression. b. Due to his disabilities, he received multiple nonjudicial punishments for failure to be at an appointed place of duty. As a result of his untreated and undiagnosed conditions, he was discharged from the service. These conditions were also the reason he did not complete his term of service. 3. The applicant provides copies of: a. His DA Form 149 application with his statement. b. His DD Form 214, 15 September 2004. c. A VA Rating Decision, 5 November 2007, showing his was granted service connection compensation on 29 March 2007 for left Achilles tendon condition, left hand condition, left knee pain. d. A Bachelor of Science diploma from a state college. e. State college transcripts showing he completed a course of study in Business Administration: Marketing Management. f. A VA Rating Decision, 17 November 2015, showing disability benefits awarded him for major depressive disorder, moderate with anxious distress, panic disorder with agoraphobia, effective 29 April 2014. 4. A review of the applicant's service records shows: a. On 9 January 2002, he enlisted in the Regular Army for 4 years at age 19. He completed Basic Combat Training and he completed Advanced Individual Training and he was awarded military occupational specialty 88M (Motor Transport Operator). b. He was counseled (DA Form 4856) on 4 February 2004, for two instances of failure to be at his appointed place of duty at 0630 hours formation and failure to be at his appointed place of duty at the railhead. c. On 2 March 2004, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go to this place of duty on 20 January 2004 0630 accountability formation at Fort Hood. His punishment consisted of reduction from private first class to private 2/E-2, forfeiture of $348.00 for 1 month, and 14 days extra duty and 14 days restriction. He did not appeal the punishment. d. He was counseled: . On 19 April 2004 for failure to be at his appointed places of duty on multiple occasions, 15 April 2004, 16 April 2004, and 19 April 2004 . On 20 April 2004, failure to be at his appointed place of duty at the 0630 hours formation of 0900 hours formation . On 20 April 2004, to inform him he was placed on administrative restriction for continuously missing formations and not showing up for work . On 6 May 2004, to inform him he was placed on administrative restriction for continuously missing formations and not showing up for work e. On 27 May 2004, he accepted NJP under the provisions of Article 15 of the UCMJ for failing to go to this place of duty at the 0630 accountability formation, Company B, 27th Main Support Battalion (MSB) area, on 16 April 2004. His punishment consisted of reduction from private 2/E-2 to private/E-1, forfeiture of $278.00 for 1 month, and 14 days restriction; all suspended. He was given 14 days extra duty. He did not appeal the punishment. f. On 1 June 2004, his status changed from present for duty (PDY) to absent without leave (AWOL). g. On 25 June 2004, his commanding officer, Headquarters, Company B, 27th MSB, DISCOM, vacated the suspended portion of NJP imposed against him on 27 May 2004, and remitted his reduction to private/E-1, forfeiture of $278.00 for 1 month and restriction for 14 days. h. On 29 June 2004, his status changed from AWOL to PDY and he was placed on administrative restriction. i. On 15 July 2004, he underwent a mental health evaluation (DA Form 3822-R) as requested by his command. The Chief Psychologist, T. Moore Health Clinic, Fort Hood, found: (1) He had normal behavior and a fully oriented level of alertness with unremarkable mood or affect; he had a clear thinking process with normal content and good memory. (2) In the examiner's opinion, he had the mental capacity to understand and participate in the proceedings, he was mentally responsible, and he met the retention requirements of Army Regulation 40-501, Chapter 3. (3) There was no evidence of psychiatric condition which would warrant disposition through medical channels. He was psychiatrically cleared for any administrative action deemed appropriate by his command. j. On 3 August 2004, his immediate commander notified him of his intent to initiate separation action against him for the commission of a serious offense under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, and advised him of his rights. He stated the following reasons for his proposed action were: he was AWOL from 1 June 2004 to 29 June 2004, and he received two instances of NJP and numerous counseling statements for failure to be at his appointed place of duty. His commander recommended he receive a general, under honorable conditions discharge. He was advised of the rights available to him, specifically that he may request appointment of military counsel for representation and/or submit statements in his own behalf. k. On 4 August 2004, he acknowledged receipt of his commander's separation notification. He understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He further understood that as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits of as a Veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life. He waived consulting counsel and representation by military counsel. He elected not to submit statements in his own behalf. l. On 16 August 2004, his company commander recommended approval of his separation under provisions of Army Regulation 635-200, Chapter 14-12c, for commission of a serious offense. m. On 19 August 2004, the intermediate commander recommended approval of his proposed separation. n. On 30 August 2004, the Commanding Officer, Headquarters, 1st Cavalry Division, (Rear) (Provisional), Fort Hood, approved his under the provisions of Army Regulation 635-200, Chapter 14-12c and directed he be issued a General, Under Honorable Conditions Discharge Certificate. o. On 15 September 2004, he was discharged accordingly. His DD Form 214 shows he completed 2 years, 7 months, and 9 days of active service. It also shows in: (1) Block 4 (Grade, Rate or Rank) – private 1, and Block 4a (Pay Grade) – E-1. (2) Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) – Army Lapel Button, Global War on Terrorism Service Medal, National Defense Service Medal, Army Service Ribbon. (3) Block 24 (Character of Service) – General, Under Honorable Conditions. (4) Block 25 (Separation Authority) – Army Regulation 635-200, Paragraph 14­12c. (5) Block 28 (Narrative Reason for Separation) – Misconduct. (6) Block 26 (Separation Code) – JKF. (7) Block 27 (Reentry Code) – 4. (8) Block 29 (Dates of Time Lost During This Period) – 1 June 2004 to 28 June 2004. 5. On 8 January 2008, the ABCMR (Docket AR20070011314) voted to administratively correct his DD Form 214 to show his Separation code as JKQ and his reentry eligibility code as 3. 6. On 30 April 2010, the Army Discharge Review Board determined his discharge was both proper and equitable and voted to deny relief. 7. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 8. 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 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 an upgrade of his under honorable conditions (general) 15 December 2004 discharge and a change in the narrative reason for his separation. He states: During my term of service, I incurred an injury that required surgery of my right tibia. The surgery was the placement of an intramedullary nail. Post-surgery, I experienced mental and physical difficulties that restricted my ability to perform my duties in a satisfactory manner. I suffered from chronic pain, mobility issues, sleep impairment, impaired judgement, anxiety, and depression. Due to my disabilities, I received multiple non-judicial punishments for failure to be at appointed place or duty. As a result of my untreated/diagnosed conditions, I was discharged from service for my actions. These conditions are also the reason I did not complete my term of service.” 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 9 January 2002 and was discharged on 15 September 2004 under the separation authority provided by paragraph 14-12c of AR 635-200, Personnel Separations – Enlisted Personnel (1 November 2000): Commission of a serious offense. Is does not list a period of service in a hazardous duty pay area. It notes lost time under 10 USC § 972 from 1 – 28 June 2008. c. The request for a discharge upgrade was denied by the ADRB on 30 April 2010 (AR20090011633). Rather than repeat their findings here, the board is referred to the record of proceedings for that case. Because this denial was before the institution of liberal consideration polices, this review will concentrate on evidence of a potentially mitigating mental health condition as well as new evidence submitted with this application. d. There are just three encounters in AHLTA with the first encounter dated 14 July 2005: two were for a fractured metacarpal in his right hand and one for urinary symptoms. Radiology reports show the applicant underwent intramedullary nailing of a chronic right tibial anterior stress fracture in February 2004. e. He underwent a mental status evaluation on 15 July 2004. The provider documented a normal examination and psychiatrically cleared him for any action deemed appropriate by command: “Service Member's mental status was within normal limits. There is no evidence of a major psychiatric disorder that would excuse the soldier of responsibility for his/her actions. This individual was and is mentally responsible, able to distinguish right from wrong, and has the mental capacity to understand and participate in the chapter proceedings.” f. His company commander notified the applicant in a 3 August 2004 memorandum that he was initiating separation action under paragraph 14-12c of AR 635-200: “The reasons for my proposed action are: You were AWOL from 1 June 2004 to 29 June 2004. In addition, you have received two Article 15s and numerous counseling statements for failure to be at your appointed place of duty.” g. The recommended separation action was approved by the commander of the 1st Cavalry Division (Rear) (Provisional) with a general under honorable conditions characterization of service on 30 August 2004. h. Review of his records in JLV shows he has been awarded multiple VA service-connected disability ratings, including one for major depressive disorder. Kurta Questions A. Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, Major depressive disorder B. Did the condition exist or experience occur during military service? Yes C. Does the condition or experience actually excuse or mitigate the discharge? Yes: As major depressive disorder is associated with a lack of motivation and avoidant behaviors, the condition fully mitigates his multiple failures to repair and period of absence without leave. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records, a medical advisory opinion, and published DoD 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 medical records and conclusions of the advising official. One possible outcome was to approve the applicant’s request based upon the medical advisory and guidance for consideration of discharge upgrade requests. However, the Board determined that they did not agree with the medical advisory opinion in that the applicant’s basis for separation was only partially mitigated due to the length of his AWOL and frequency of misconduct. Based upon a preponderance of the evidence, and notwithstanding the recommendation of the advisory official, the Board determined the narrative reason for separation and character of service the applicant received upon separation were not in error or unjust. 2. The Board further noted the applicant was reduced in rank after multiple incidents of non-judicial punishment. The Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s rank. BOARD V:OTE: Mbr 1 Mbr 2 Mbr 3 :X : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :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, U.S. Code, 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. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. 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. 3. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. 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 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. 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. d. Paragraph 14-12c. Commission of a Serious Offense. Commission of a serious offense. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the MCM. An absentee returned to military control from a status of absent without leave or desertion may be separated for commission of a serious offense. 4. Army Regulation 635-5-1 (Personnel Separations – Separation Program Designators), in effect at the time, listed the specific authorities, regulatory, statutory, or other directive, and reasons for separation from active duty, active duty for training, or full time training duty. The separation program designator "JKQ" corresponded to "Misconduct (Serious Offense)," and the authority, Army Regulation 635-200, Chapter 14-12c. 5. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It established standardized policy for preparing and distributing the DD Form 214. In block 4 (Grade, Rate, or Rank), enter the active duty grade or rank and pay grade at time of separation from ERB/ORB. 6. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to administration of military justice. a. Paragraph 3 states NJP is imposed to correct misconduct as a result of intentional disregard of or failure to comply with prescribed standards of military conduct in violation of the UCMJ. NJP may be set aside or removed upon a determination that under all the circumstances of the case, a clear injustice has resulted. b. Paragraph 3-37a, states the original DA Form 2627 will include allied documents, such as all written statements and other documentary evidence considered by the imposing commander or the next superior authority acting on an appeal. c. Paragraph 3-37b(1)(a) states the decision to file the original DA Form 2627 in the performance or restricted folders in the OMPF will be made by the imposing commander at the time NJP is imposed. The filing decision of the imposing commander is subject to review by superior authority. For Soldiers in the ranks of sergeant and above, the original will be sent to the appropriate custodian for filing in the OMPF. d. "Clear injustice" means there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier. An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier. 7. 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. 8. The acting Under Secretary of Defense for Personnel and Readiness provided clarifying guidance on 25 August 2017, which expanded the 2014 Secretary of Defense memorandum, that directed the BCM/NRs and DRBs to give liberal consideration to veterans looking to upgrade their less-than-honorable discharges by expanding review of discharges involving diagnosed, undiagnosed, or misdiagnosed mental health conditions, including PTSD; traumatic brain injury; or who reported sexual assault or sexual harassment. 9. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (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. 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 based on 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. 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//