IN THE CASE OF: BOARD DATE: 11 May 2023 DOCKET NUMBER: AR20220010978 APPLICANT REQUESTS: an upgrade of his under honorable conditions (general) 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) * Progress Note, Department of Veterans Affairs (VA) Medical Center, Birmingham, dated 14 November 2011 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's DD Form 293 notes "Other Mental Health" as a condition related to his request for discharge upgrade. 3. While serving in the Army National Guard, the applicant was ordered to active duty and entered a period of active duty service on 30 September 1977. 4. The applicant accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 7 August 1979 and 6 September 1979 for being absent without leave (AWOL) from his place of duty on two occasions. 5. On 3 July 1980, the applicant was granted a waiver of eight days lost time for the purpose of reenlistment. He enlisted in the Regular Army on 10 July 1980 for a 3-year period. 6. The applicant accepted non-judicial punishment under the provisions of Article 15 of the UCMJ on 2 November 1982 for violating a lawful general order on or about 18 September 1982. His punishment consisted of reduction to private first class/E-3, forfeiture of $171.00 pay, and 14 days of extra duty. 7. A DA Form 3072 (Request for Waiver of Disqualification for Enlistment Reenlistment in the Regular Army for In-Service Personnel), dated 8 April 1983, shows the applicant was granted a waiver for a company grade Article 15, dated 20 April 1981, for the purpose of reenlistment. He reenlisted in the Regular Army on 18 April 1983 for a 3-year period. 8. The applicant was formally counseled on eight separate occasions between 30 October 1984 and 2 January 1985. Areas of emphasis covered in the counseling include, but are not limited to: * job expectations * overdrawn bank account * failed room inspection * poor attitude and appearance * failed military driver's test six times * poor military bearing * missing company formation 9. The applicant accepted non-judicial punishment under the provisions of Article 15 of the UCMJ on 11 January 1985 and 12 March 1985 for three occasions of failure to go at the time prescribed to his appointed place of duty. His punishment consisted of the following: * reduction to private/E-2, forfeiture of 3 day's pay, 14 days of extra duty, and 14 days of restriction * reduction to private/E-1, forfeiture of 7 day's pay, 14 days of extra duty, and 14 days of restriction 10. A DA Form 3822-R (Report of Mental Status Evaluation), dated 22 March 1985, shows the applicant was psychiatrically cleared to participate in board proceedings. 11. A Bar to Reenlistment was approved on 23 April 1985. The corresponding DA Form 4126-R (Bar to Reenlistment Certificate) notes the applicant received non- judicial punishment, resulting in reduction in rank, on three occasions. 12. The applicant accepted non-judicial punishment under the provisions of Article 15, of the UCMJ on 25 April 1985, for being AWOL on or about 10 April 1985 until on or about 11 April 1985. His punishment consisted of forfeiture of $200.00 pay for one month, 45 days of extra duty, and 45 days of restriction. 13. The applicant's commander notified him on 25 April 1985 of his intent to initiate administrative separation action under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 13, by reason of unsatisfactory performance. The applicant's commander advised him of his rights and the applicant acknowledged receipt of the notification. 14. On the same date, the applicant acknowledged he was advised by consulting counsel of the basis for the contemplated action to separate him for unsatisfactory performance under Army Regulation 635-200, Chapter 13, and its effects; of the rights available to him; and the effect of any action he took in waiving his rights. a. He waived consideration of his case by an administrative separation Board. He elected not to submit statements in his own behalf. b. 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 as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life. 15. The applicant's immediate commander formally recommended his separation under the provisions of Army Regulation 635-200, Chapter 13, on 25 April 1985. As the reasons, the commander noted the applicant's eight occasions of formal counseling and disciplinary action under the provisions of Article 15 of the UCMJ. 16. The separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, Chapter 13, he waived the rehabilitation requirements, and directed the issuance of a General Discharge Certificate. 17. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 2 May 1985, under the provisions of Army Regulation 635-200, Chapter 13, by reason of unsatisfactory performance. His service was characterized as under honorable conditions (general). He was credited with 7 years, 7 months, and 3 days of net active service. 18. The applicant provides a VA Progress Note, dated 14 November 2011, which shows he is diagnosed with and/or being treated for generalized anxiety. 19. Soldiers may be separated under the provision of Army Regulation 635-200, Chapter 13 when it is determined that they are unqualified for further military service because of unsatisfactory performance. 20. The Board should consider the applicant's argument and/or evidence in accordance with the published equity, injustice, or clemency determination guidance. 21. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his under honorable conditions (general) discharge. The applicant asserts that other mental health condition(s) mitigated his discharge. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory: * Applicant served in the National Guard and was called to active-duty 30 September 1977. * On 7 August 1979 and 6 September 1979, the applicant accepted non-judicial punishment (NJP), under the provisions of Article 15, for being AWOL from his place of duty on 2 occasions. * He enlisted in the Regular Army 10 July 1980. He received a waiver for an Article 15 and was able to reenlist 18 April 1983. * On 2 November 1982, the applicant accepted NJP, under the provisions of Article 15, for violating lawful general order. * Applicant was formally counseled 8 separate times between 30 October 1984 and 2 January 1985. See ROP/record for full details. * On 11 January 1985 and 12 March 1985, the applicant accepted NJP, under the provisions of Article 15, for failure to report. * On 25 April 1985 and 12 March 1985, the applicant accepted NJP, under the provisions of Article 15, for going AWOL 10 April to 11 April. * Applicants commander recommend his separation under AR 635-200, Chapter 13 (unsatisfactory performance) on 25 April 1985. Applicant was discharged 2 May 1985 with an Under Honorable Conditions (general) discharge. c. Review of Available Records Including Medical: d. The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 293, his ABCMR Record of Proceedings (ROP), VA medical record Progress Note from 14 November 2011, DD Form 214, as well as documents from his service record and separation. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV) and AHLTA. Lack of citation or discussion in this section should not be interpreted as lack of consideration. e. The applicant asserts that his discharge was mitigated by other mental health conditions. His records indicate numerous concerns with his performance, as well as failures to report and going AWOL though there’s no indication of mental health concerns. The applicant had minimal health records available from his time in service. Per this his request for a waiver for reenlistment (8 April 1983) he had no medical or psychiatric conditions listed (PULHES were all 1’s). As part of the separation process, the applicant underwent a mental status exam on 22 March 1985. He was found to be mentally responsible, able to distinguish right from wrong and adhere to the right, had the mental capacity to understand participate in the board proceedings, and met medical retention standards per AR 40-501, Chapter 3. No other medical nor mental health records were provided, nor found in his electronic health record from his time in service. There is no indication that he was ever diagnosed with any other mental health condition or concern during his time in service. Though, given lack of electronic health records and the culture of mental health care at the time of his service, this is not uncommon. f. Since his discharge, the applicant is not service connected, though has engaged in mental health care through the VA. The applicant included a progress note from 2011 that shows the applicant had Generalized Anxiety Disorder (GAD) added to his problem list on 11/12/2002, though no other psychiatric history is available in the document. His electronic health record (EHR) shows that he engaged in mental health care through the VA on 26 January 2022. He was initially diagnosed with an adjustment disorder. He was last seen 10 Aug 2022 for therapy with a diagnosis of Dysthymia and GAD but terminated care due to feeling his symptoms had resolved. Per his EHR, in total he was seen five times for mental health. No other civilian mental health records were provided. g. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is no evidence to support the applicant had a condition or experience at the time of service that would mitigate his discharge. However, he contends his discharge was related to other mental health condition(s), and per Liberal Consideration guidance, 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 asserts he has a condition that mitigates his discharge. 2. Did the condition exist or experience occur during military service? Yes. The applicant does not state it directly but indicated that “other mental health” was related to his request for upgrade. 3. Does the condition or experience actually excuse or mitigate the discharge? No. Per Liberal Consideration guidance, his contention alone is sufficient to warrant the Board’s consideration. However, there is insufficient evidence that the applicant was experiencing a mental health condition prior to his misconduct and poor performance, nor while in the service during any point. He has since been diagnosed with GAD and Dysthymia, but this came 17 to 37 (respectively) years after he was discharged and there’s no indication in his medical records that his anxiety and/or depression started with, or is linked to, his time in service. Of note, the applicant’s discharge included some behaviors consistent with the natural history and sequelae of anxiety (avoidance as seen through failure to report, AWOL, difficulty with test taking) and there is a nexus between these symptoms/experiences and some of the misconduct and poor performance leading to his discharge. Again, there is insufficient evidence to support any mitigating conditions or experiences were present during his time in service. And his misconduct is not sufficient evidence to establish any mental health conditions. BOARD DISCUSSION: 1. 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 mental health claim and the review and conclusions of the ARBA Behavioral Health 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 a mental health condition. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. 2. The Board concurred with the corrections described in Administrative Note(s) below. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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 making the corrections described in Administrative Note(s) below. 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 an honorable character of service. 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. ADMINISTRATIVE NOTE(S): A review of the applicant's record shows his DD Form 214, for the period ending 2 May 1985, is missing important entries that may affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries in item 18 (Remarks): * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE SERVICE FROM 19800710 UNTIL 19830417 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. 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. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 13 of this regulation provides for separation due to unsatisfactory performance when, in the commander’s judgment, the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely. Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions. b. 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. 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. 4. Army Regulation 635-5 (Personnel Separations), 15 August 1979, in effect at the time did not provide for an additional entry for continuous honorable active service, when a Soldier who previously reenlisted without being issued a DD Form 214 was discharged with any characterization of service except honorable. However, an interim change, published on 2 October 1989 does provide for such an entry. 5. 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 (PTSD); 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. 6. 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) AR20220010978 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1