` IN THE CASE OF: BOARD DATE: 7 June 2023 DOCKET NUMBER: AR20220010963 APPLICANT REQUESTS: Reconsideration of his request for an upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050016432 on 16 May 2006. 2. As a new argument, the applicant states, he had undiagnosed schizophrenia which was not recognized during initial evaluations. Schizophrenia has led to his unfavorable decisions. Serving with the 82nd Airborne Division was an honor he truly values. 3. The applicant enlisted in the Regular Army on 27 December 1984 for a 4-year period. The highest rank he attained was private/E-2. 4. The applicant accepted non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice, on 22 July 1985 for the wrongful use of marijuana from on or about 31 May 1985 to on or about 10 June 1985. His punishment included forfeiture of $347.00 pay per month for two months, 45 days of extra duty, and restriction for 45 days. 5. Court-martial charges were preferred against the applicant on 31 December 1985 for violations of the Uniform Code of Military Justice. His DD Form 458 (Charge Sheet) shows he was charged with absenting himself from his unit without leave (AWOL) from on or about 26 July 1985 to on or about 30 December 1985. 6. The applicant consulted with legal counsel on 31 December 1985. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a UOTHC discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal 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. 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. c. He was advised he could submit any statements he desired in his behalf. He did not provide a statement. 7. The applicant's immediate commander recommended approval of his request for discharge in lieu of trial by court-martial on 10 January 1986, and further recommend an UOTHC discharge. 8. The separation authority approved the applicant's request for discharge on 10 February 1986, and directed the issuance of a DD Form 794A (UOTHC Discharge Certificate). 9. The applicant was discharged on 26 March 1986, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service - in lieu of court-martial. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his character of service was UOTHC, and he was credited with 9 months and 26 days of net active service, with lost time from 26 July 1985 to 29 December 1985. 10. The ABCMR reviewed the applicant's petition for an upgrade of his discharge on 16 May 2006. After careful consideration, the Board determined his characterization of service was neither in error nor unjust. Accordingly, his request for relief was denied. 11. The applicant's record does not contain, nor does he provide documentation pertaining to his claim of schizophrenia. 12. Discharges under the provisions of Army Regulation 635-200, Chapter 10, are voluntary requests for discharge for the good of the service, in lieu of a trial by court- martial. An UOTHC character of service is normally considered appropriate. 13. The Board should consider the applicant's argument and/or evidence in accordance with the published equity, injustice, or clemency determination guidance. 14. MEDICAL REVIEW: a. The applicant requests reconsideration of his previous request for an upgrade of his under other than honorable conditions (UOTHC) discharge to honorable. He contends his misconduct was related to Schizophrenia. 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 27 December 1984; 2) He accepted non- judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice, on 22 July 1985 for the wrongful use of marijuana from on or about 31 May 1985 to on or about 10 June 1985; 3) Court-martial charges were preferred against the applicant on 31 December 1985 for violations of the Uniform Code of Military Justice. His DD Form 458 (Charge Sheet) shows he was charged with absenting himself from his unit without leave (AWOL) from on or about 26 July 1985 to on or about 30 December 1985; 4) The applicant consulted with legal counsel on 31 December 1985. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of AR 635-200, Chapter 10, for the good of the service; 5) The separation authority approved the applicant's request for discharge on 10 February 1986. The applicant was discharged on 26 March 1986, under the provisions of Army Regulation 635-200. c. 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. No military BH-related records were provided for review. A review of JLV showed the applicant was enrolled in the Homeless Veteran’s Program, through the Miami FL, VA from July 2019 through March 2021. Records showed the applicant was receiving care at a civilian facility (Guidance Care Center, Key West), where he was diagnosed with PTSD, Anxiety Disorder, MDD, and Bipolar Disorder. Records suggest symptom onset of the disorders began in 2004 subsequent to multiple losses, to include the applicant finding his brother’s body after he committed suicide by gunshot: neither diagnosis was related to military service. While enrolled in the Homeless Veteran’s Program, the applicant met monthly with his Social Worker Case Manager and participated in with Social Work Group, per program requirements. Records were void of a diagnosis of Schizophrenia. No hardcopy civilian BH records were provided for review. The applicant does not have a service-connected disability. d. The applicant is requesting reconsideration of his previous request for upgrade of his UOTHC discharge. He contends his misconduct was related to Schizophrenia. A review of the records was void of BH-related diagnosis or treatment for the applicant during service. Post-service records showed the applicant diagnosed with PTSD, MDD, Anxiety Disorder, and Bipolar Disorder with symptom onset in 2004 and associated with multiple losses, to include his brother to suicide. Records was void of a diagnosis of Schizophrenia and the applicant did not provide documentation to support his assertion of Schizophrenia. In absence of documentation supporting his assertion of Schizophrenia, there is insufficient evidence that the applicant’s misconduct was related to Schizophrenia. Also, although the applicant has diagnosis that would have mitigated his misconduct, symptom onset for them were decades post-discharge and not related to military service. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence in the records that the applicant had a condition or experience during his time in service that mitigated his misconduct. However, he contends his misconduct was related to Schizophrenia, and per Liberal Consideration policies, his contention is sufficient to warrant the Board’s consideration. 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 contends his misconduct was related to Schizophrenia 2. Did the condition exist or experience occur during military service? Yes. 3. Does the condition or experience actually excuse or mitigate the discharge? No. The applicant is requesting reconsideration of his previous request for upgrade of his UOTHC discharge. He contends his misconduct was related to Schizophrenia. A review of the records was void of BH-related diagnosis or treatment for the applicant during service. Post-service records showed the applicant diagnosed with PTSD, MDD, Anxiety Disorder, and Bipolar Disorder with symptom onset in 2004 and associated with multiple losses, to include his brother to suicide. Records was void of a diagnosis of Schizophrenia and the applicant did not provide documentation to support his assertion of Schizophrenia. In absence of documentation supporting his assertion of Schizophrenia, there is insufficient evidence that the applicant’s misconduct was related to Schizophrenia. Also, although the applicant has diagnosis that would have mitigated his misconduct, symptom onset for them were decades post-discharge and not related to military service. BOARD DISCUSSION: After reviewing the application and all supporting documents, 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. The Board agreed there is insufficient evidence in the records that the applicant had a condition or experience during his time in service that mitigated his misconduct. Additionally, his records was void of a diagnosis of Schizophrenia and the applicant did not provide documentation to support his assertion of Schizophrenia. Upon review of the applicant’s petition, available military records and the medical review, the Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. Based upon a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. As such, relief was denied. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING xx xx xx 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 to amend the decision of the ABCMR set forth in Docket Number AR20050016432 on 16 May 2006. 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. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. b. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. Paragraph 3-7b provides that 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. 2. 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 Discharge Review Boards (DRB) and Boards for Correction of Military/Naval Records (BCM/NR) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including post-traumatic stress disorder; traumatic brain injury; sexual assault; or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on 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. 3. 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. 4. Section 1556 of Title 10, U.S. Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220010963 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1