IN THE CASE OF: BOARD DATE: 24 May 2023 DOCKET NUMBER: AR20220009644 APPLICANT REQUESTS: An upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge. Additionally, he requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) with personal statement * Administrative Specialist Course Diploma, dated 9 August 1991 * Orders Number 070-025, issued by Headquarters, 102nd U.S. Army Reserve Command on 26 May 1992 * DD Form 458 (Charge Sheet) dated 13 October 1992 * Scott Credit Union teller checks and purchaser's copies of checks made out to the Army & Air Force Exchange Service * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Medical Documents (20 pages) FACTS: 1. The applicant did not file within the three-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. In a self-authored statement, the applicant states: a. He was discharged due to a violation under the Uniform Code of Military Justice (UCMJ). Immediately after his discharge on 9 December 1992, he committed the same offense on 24 December 1992. He broke windows at the Venture Department Store, but instead of being charged with a criminal offense he was involuntarily committed to the Alton Mental Health Center. He became physically aggressive, and attacked and injured staff. He was diagnosed as a schizoid and remained in a mental institution for 7 months. b. Since the identical offense occurred within three weeks after his discharge, indicates he should have been psychiatrically treated at a military hospital and discharged with a disability. The Alton Mental Health Center indicates that he received psychiatric treatment while he was on active duty. The charges from the department store were dropped. He requires psychotropic medication and professional counseling for the remainder of his life, and having a change in his discharge will allow him treatment through the Veterans Administration. 3. The applicant notes other mental health issues are related to his request, as a contributing and mitigating factor in the circumstances that resulted in his separation. 4. Having had prior service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 2 April 1992 for a 3-year term of service. Upon completion of training, he was awarded military occupational specialty 71L (Administrative Specialist). 5. Court-martial charges were preferred against the applicant for violations of the UCMJ. The relevant DD Form 458 (Charge Sheet) is not available for review; however, his charges are shown as: a. Charge I, violation of Article 90; specifically, two specifications of striking a superior commissioned officer who was in the execution of his duties in the chest with a closed fist and having received a lawful command from his superior commissioned officer, to be at ease, did willfully disobey the order. b. Charge II, Violating Article 108; specifically, four specifications of without proper authority, willfully damage building 249, building T209, building 3008 and building S3, T5 and T9 by breaking the glass in the windows, the amount of said damage of each being a sum exceeding $100.00 each, military property. c. Charge III, Violating Article 109; specifically, one specification of willfully and wrongfully damaging two privately owned vehicles by breaking the windshield of each with rocks, the amount of said damage being a sum in excess of $100.00. 6. A statement written from applicant's non-commissioned officer, states in pertinent part, court-martial charges were too severe a punishment for the applicant. A discharge under the provisions of Chapter 10, would be the best option. 7. On 9 September 1992, after consulting with counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court-martial. a. In his request, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. b. He elected to submit a statement in his own behalf, which states his misconduct is the first serious incident in his 15-months of combined service. He has been in Korea for 6 months and has had a hard time adjusting. He admits he made a mistake, and he is prepared to pay restitution for the damage he caused. Consequently, he feels a Chapter 10 with a UOTHC Discharge Certificate is an appropriate punishment. 8. The applicant’s commander on 9 September 1992 recommended approval of his request for discharge in lieu of trial by court-martial, with an UOTHC discharge. 9. Letters from the applicant's mother and his father, a retired Chief Master Sergeant, state that the applicant was a slow learner, and he was going through some type of emotional problems that triggered his violent outbursts and actions. His father recommended the applicant be returned to an Army Post for a comprehensive psychiatry exam because discharge and/or confinement would only contribute to his emotional instability. 10. Memorandum, dated 1 October 1992, shows the applicant's Chapter 10 request approved on 19 September 1992, was withdrawn pending disposition of his case by other means, due to subsequent acts of misconduct. 11. On 7 October 1992, the applicant was administered a psychological evaluation. On 23 October 1992, the Weschler Adult Intelligence Scale-Revised was administered. The psychologist summary based on the results and observation of the patient suggest that his intellectual abilities were below average. His average vocabulary skills may mask abilities, such as abstraction and nonverbal skills, that are below average. He did not appear to be suffering from a mood, anxiety, or thought disorder. He has adequate coping skills and feels that he is similar to well-adjusted individuals. He denied most behaviors that could have been construed as negative. 12. A Sanity Board was conducted on 6 October 1992; the findings were unanimous that the applicant did not suffer from severe mental disease or defect. He had sufficient capacity to understand the nature of the proceedings and to cooperate intelligently in the defense. 13. On 23 October 1992, after again consulting with counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service. 14. A Narrative Summary (Clinical Resume), dated 28 October 1992, shows the applicant was a 28 and a half year old male with 7 months in service and 7 months in Korea. He was currently charged with destruction of government property and private property, assault, assault on a commissioned officer and disobeying a commissioned officer. He stated that he "was stressed" and had little remorse for his actions, and states that if he were in the same situation, he'd react the same way (destroying property). Although the applicant scored in the borderline area of intellectual functioning (the cut-off score on intelligence tests for mental retardation is 70; he scored a 75), this does not constitute a severe mental disorder or defect. The examining physicians determined he had the capacity to understand the nature of the proceedings and to cooperate intelligently in the defense. 15. A memorandum from the applicant's defense counsel, dated 30 November 1992, stated it would be a grave injustice to separate the applicant with an UOTHC discharge, as his low mental capacity is something that he will forever have to overcome. With the extraordinary circumstances involved, the applicant should not be further handicapped with a less than honorable discharge. 16. The applicant’s immediate commander on 1 December 1992 recommended approval of his separation for the good of the service, with an UOTHC discharge 17. On 5 December 1992, the separation authority approved the applicant's request for discharge in lieu of court-martial. He further directed the applicant's reduction to the lowest enlisted grade and the issuance of an UOTHC discharge. 18. On 9 December 1992, the applicant was discharged in the lowest enlisted grade. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service. His service was characterized as UOTHC. He was credited with 8 months and 8 days of net active service this period. 19. The applicant provides medical documents that show: a. He was admitted on 24 December 1992 to the Alton Mental Health and Developmental Center. It was reported the applicant had been throwing rocks through a department store window to bring attention to the blight of middle class unemployed, trained, black males. The petition also reports that the applicant had been voicing suicidal ideations. b. Upon admission the applicant was prescribed psychotropic medication, Trilafon. He was cooperative during the first few days of the admission, however, on 29 December 1992 he became very threatening and began throwing furniture. Mechanical restraints were required. On 30 December 1992, Lorazepam was added to the medication regimen. On 1 January 1993, he again became very angry and was physically aggressive towards staff. Intramuscular staff medication and mechanical restraints were again required to protect himself and others from harm. Again, on 3 January 1993, he attacked and injured a staff person. On 4 January 1993, the applicant attacked a male peer. This required the use of mechanical restraints. Due to continued agitation and verbal threats the mechanical restraints were continued until his transfer to the Chester Mental Health Center. c. Following transfer to the Chester Mental Health Center on 5 January 1993, he had frequent visits from his family, mother, and sisters. He was discharged on 21 July 1993 from the Illinois Department of Mental Health and Developmental Disabilities with a treatment plan. 20. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 21. In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 22. MEDICAL REVIEW: a. The applicant requests an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge. He contends his misconduct was related to Other Mental Health Issues. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted into the Regular Army on 2 April 1992; 2) Court-martial charges were preferred against the applicant for violations of the UCMJ. The relevant DD Form 458 (Charge Sheet) is not available for review; however, his charges are shown as: * Charge I, violation of Article 90; specifically, two specifications of striking a superior commissioned officer who was in the execution of his duties in the chest with a closed fist and having received a lawful command from his superior commissioned officer, to be at ease, did willfully disobey the order. * Charge II, Violating Article 108; specifically, four specifications of without proper authority, willfully damage building 249, building T209, building 3008 and building S3, T5 and T9 by breaking the glass in the windows, the amount of said damage of each being a sum exceeding $100.00 each, military property. * Charge III, Violating Article 109; specifically, one specification of willfully and wrongfully damaging two privately owned vehicles by breaking the windshield of each with rocks, the amount of said damage being a sum in excess of $100.00. c. 3) A statement written from applicant's non-commissioned officer, states in pertinent part, court-martial charges were too severe a punishment for the applicant. A discharge under the provisions of Chapter 10, would be the best option; 4) On 9 September 1992, after consulting with counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial; 5) The applicant’s commander on 9 September 1992 recommended approval of his request for discharge in lieu of trial by court-martial, with an UOTHC discharge; 6) The applicant’s father (a retired Chief Master Sergeant), in a letter, recommended the applicant be returned to an Army post and undergo a comprehensive psychiatric examination; 7) Memorandum, dated 1 October 1992, shows the applicant's Chapter 10 request approved on 19 September 1992, was withdrawn pending disposition of his case by other means, due to subsequent acts of misconduct; 8) A Sanity Board was conducted on 6 October 1992. The findings were unanimous that the applicant did not suffer from severe mental disease or defect. He had sufficient capacity to understand the nature of the proceedings and to cooperate intelligently in the defense; 9) The summary from the applicant’s psychological evaluation showed, in part, that he scored in the borderline area of intellectual functioning but did not have a severe mental disorder or defect. It was also determined he had the capacity to understand the nature of the proceedings and cooperate intelligently in his defense; 10) The applicant’s immediate commander on 1 December 1992 recommended approval of his separation for the good of the service, with an UOTHC discharge; 11) On 9 December 1992, the applicant was discharged in the lowest enlisted grade. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service. d. The VA electronic medical record, JLV, ROP, and casefiles, were reviewed. The military electronic medical record, AHLTA, was not reviewed as it was not in use during the applicant’s time in service. Records show that while on active duty the applicant underwent a Sanity Board on 6 October 1992 where it was found the applicant did not suffer from severe mental disease or defect. As part of the sanity board process the applicant underwent a psychological evaluation, whereby it was noted he scored in the borderline mental retardation range for IQ on the Weschler Adult Intelligence Scale- Revised (WAIS-R). Results of the Minneapolis Multiphasic Personality Inventory (MMPI) showed no elevations on clinical scales, and suggested the applicant had adequate coping skills and was similarly well adjusted. However, the Narrative Summary (Clinical Resume), dated 28 October 1992 showed the applicant reported his misconduct characterized by breaking windows was the result of becoming frustrated. He reportedly impulsively grabbed rocks and started breaking windows because he was stressed and did not know what else to do. The Clinical Resume’s author noted that “it appears that [the applicant] is easily frustrated when challenged, and resorts to immature, impulsive, destructive actions”. The author went on to note the applicant’s “actions were not premeditated and appear to be his maladaptive reaction when stressed”. Given the applicant’s report and the author’s finding, it appears to this advisor that the MMPI interpretive summary was at odds with both what was reported during the clinical encounter and the applicant’s actual behavioral history. The conflicting results may be due to the applicant answering questions on the MMPI in such a manner that suggest him being well adjusted. When such conflicts arise, it is the responsibility of the provider interpreting the MMPI data to consider all the relevant information. Given the applicant’s repeated misconduct, endorsement of low stress tolerance, and opinion of the Clinical Resume author, it appears more likely than not the applicant wasn’t not well adjusted nor possessed adequate coping skills. e. Also included in the applicant’s casefile was civilian BH records showing the applicant was involuntarily psychiatrically hospitalized at Alton Mental Health and Developmental Center on 24 December 1992 (two weeks post discharge from the military). He was seen as an Emergency/Mental Ill admission, after being arrested for throwing rocks through department store windows in order to bring attention to the blight of middle class, unemployed, black males. The petition also noted the applicant voiced suicidal ideation. It was noted the upon admission the applicant voiced odd thoughts and delusional thinking and was prescribed psychotropic medication. During his time at Alton Mental Health the applicant was noted to have become threatening and angry on multiple occasions, threw furniture, attacked a staff member and a peer, resulting in the need for mechanical restraints and injections of intramuscular psychotropic medications, on several occasion. He was diagnosed with Psychotic Disorder NOS. The applicant was subsequently transferred to a maximum-security environment (Chester Mental Health Center) on 5 January 1993. It was noted that while at Chester MHC the applicant was observed being very delusional and believed that he was a prophet of God with a mission to unify white, black, brown, and other races into one. While at Chester the applicant was treated with antipsychotic and mood stabilizing medications. He was diagnosed with Schizo-affective Disorder, and records suggest he was transferred back to Alton MHC in May 1993 for treatment of symptoms to include problems with reality testing, psychiatric distress, impulse control, violent tendencies, and delusions. The applicant was discharged on 21 July 1993 with diagnosis of Schizoaffective Disorder and was noted to be stable on medication. He was scheduled for outpatient treatment at Belleville Mental Health Center. f. A review of JLV was void of any treatment history and the applicant does not have a service-connected disability. No other BH records were provided for review. g. The applicant is seeking an upgrade of his under other than honorable conditions discharge. He contends his misconduct was associated with Other Mental Health Issues. A review of the records showed the applicant was diagnosed with Borderline Intellectual Function during service and Psychotic Disorder NOS, and Schizoaffective Disorder, post-service. It appears to this advisor that the applicant’s misconduct was likely related to a confluence of immature response style, low frustration tolerance, and maladaptive behaviors, related to his Borderline Intellectual Functioning, coupled with difficulty with reality testing, aggressive behavior, and impulsivity related to Psychotic Disorder/Schizoaffective Disorder. While there was no specific evidence of a Psychotic Disorder in the military records, given the nature and course of Psychotic Disorders and the fact the applicant was psychiatrically hospitalized and diagnosed within weeks of being separated from the military, it is reasonable to conclude the presence of a Psychotic Disorder or symptoms were present during his military service. Given the above, as there is a relationship between Psychotic Disorder/Schizoaffective Disorder and problems with reality testing, impulse control, and aggressive behavior, there is a nexus between the applicant’s misconduct characterized by striking his superior officer and property damage and his diagnoses of Psychotic Disorder/Schizoaffective Disorder. The applicant’s immature response style, low frustration tolerance, and maladaptive coping strategy related to Borderline Intellectual Functioning further mitigates his misconduct. h. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence in the records that the applicant had a condition or experience during his time in service that mitigated his misconduct. Kurta Questions: 1. Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant is diagnosed Borderline Intellectual Functioning, Psychotic Disorder NOS, and Schizoaffective Disorder. 2. Did the condition exist or experience occur during military service? Yes. 3. Does the condition or experience actually excuse or mitigate the discharge? Yes. The applicant is seeking an upgrade of his under other than honorable conditions discharge. He contends his misconduct was associated with Other Mental Health Issues. A review of the records showed the applicant was diagnosed with Borderline Intellectual Function during service and Psychotic Disorder NOS, and Schizoaffective Disorder, post-service. It appears to this advisor that the applicant’s misconduct was likely related to a confluence of immature response style, low frustration tolerance, and maladaptive behaviors, related to his Borderline Intellectual Functioning, coupled with difficulty with reality testing, aggressive behavior, and impulsivity related to Psychotic Disorder/Schizoaffective Disorder. While there was no specific evidence of a Psychotic Disorder in the military records, given the nature and course of Psychotic Disorders and the fact the applicant was psychiatrically hospitalized and diagnosed within weeks of being separated from the military, it is reasonable to conclude the presence of a Psychotic Disorder or symptoms were present during his military service. Given the above, as there is a relationship between Psychotic Disorder/Schizoaffective Disorder and problems with reality testing, impulse control, and aggressive behavior, there is a nexus between the applicant’s misconduct characterized by striking his superior officer and property damage and his diagnoses of Psychotic Disorder/Schizoaffective Disorder. The applicant’s immature response style, low frustration tolerance, and maladaptive coping strategy related to Borderline Intellectual Functioning further mitigates his misconduct. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was 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. One potential outcome was to deny relief based on the nature of the misconduct. However, upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding there is sufficient evidence in the records that the applicant had a condition or experience during his time in service that mitigated his misconduct. Based on the medical opine, there is a nexus between the applicant’s misconduct characterized by striking his superior officer and property damage and his diagnoses of Psychotic Disorder/Schizoaffective Disorder. The applicant’s immature response style, low frustration tolerance, and maladaptive coping strategy related to Borderline Intellectual Functioning further mitigates his misconduct. 2. Evidence shows the applicant diagnosed with Borderline Intellectual Function during service and Psychotic Disorder NOS, and Schizoaffective Disorder, post-service. Based on the preponderance of evidence and the advising official review, the Board granted partial relief with a general under honorable conditions upgrade. 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 : X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 to show a characterization of general under honorable conditions. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the applicant’s characterization to honorable. 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. Title 10, U.S. Code, 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 (ABCMR) 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 by a preponderance of the evidence. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. 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. 4. Army Regulation 635-200, sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: 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 Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 provided that a member who had committed an offense or offenses, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate. 5. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) to carefully consider the revised post-traumatic stress disorder (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 (Hagel Memorandum). 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, Boards 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) AR20220009644 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1