IN THE CASE OF: BOARD DATE: 30 June 2023 DOCKET NUMBER: AR20220011676 APPLICANT REQUESTS: an upgrade of his characterization of service to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 16 September 2022 * Department of Veterans Affairs (VA) Board of Veterans’ Appeals, Docket number 20-25-562A, 29 July 2022 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 his discharge, which was upgraded in April 2020, should reflect on his DD Form 214 (Certificate of Release or Discharge from Active Duty). 3. The applicant enlisted in the regular Army on 22 March 1988 4. A medical record (Narrative Summary), dated 28 April 1988, shows the applicant was admitted to the hospital on 25 April 1988 due to an overdose of aspirin. The doctor noted: a. During the third week of basic training, the applicant took an overdose of Motrin because his foot was hurting. It was enough that it made his ears ring but did not do him any significant harm. b. During the fourth week of basic training, the applicant took an overdose of aspirin because he had a headache but, in truth, he is distressed and sad because it is apparent that his wife has begun the process of leaving him. c. Following admission to the hospital, discussions with the patient revealed he had not attempted to commit suicide but he had been upset, distressed, and angry over the situation with his wife and had, in a slightly self-destructive manner, taken aspirin for a headache until he effectively had a very mild overdose. He was primarily distressed because his wife does not want to follow him in the Army because her job is now better than his. d. The doctor diagnosed the applicant with an adjustment disorder with acute depression. 5. DA Form 2173 (Statement of Medical Examination and Duty Status), dated 3 May 1988, shows the applicant intentionally took an overdose of Ectorin (Aspirin) on 25 April 1988, in response to his marital problems. a. The applicant’s immediate commander directed a formal line of duty investigation to be conducted. b. The applicant’s injury was considered to not have occurred in the line of duty. 6. On 10 May 1988, the investigating officer (IO) explained to the applicant the purpose of his line of duty investigation and read him his rights. The applicant acknowledged he fully understood his rights and waived his right to make a statement on his own behalf. 7. DD Form 261 (Report of Investigation), dated 19 May 1988, show the IO found the applicant’s injury was the result of a self-inflicted overdose of Ectorin. He noted: a. On or about 25 April 1988, the applicant took an overdose of Ectorin tablets in response to marital problems he was experiencing. The applicant was transported to the hospital, treated, and admitted later to ward 4c. b. The applicant states he was distressed and sad because he believed that his wife had begun the process of leaving him. c. He was diagnosed by Dr. (Colonel) N. V. H., Chief, Department Psychiatry and Neurology, as being able to distinguish between right and wrong and to confirm his behavior to the law and Army regulations. d. The IO found the applicant’s injury was not in the line of duty due to the applicant’s own misconduct. 8. The IO informed the applicant of his findings and provided him a copy of all the evidence regarding his case. On 23 May 1988, the applicant acknowledged the findings of the line of duty investigation and elected not to make a statement on his own behalf. 9. The applicant’s record contains three DA Forms 4187 (Personnel Action), which show the below changes to his duty status: * Present for Duty (PDY) to Absent Without Leave (AWOL) – 5 July 1988 * AWOL to Dropped from Rolls (DFR) – 4 August 1988 * DFR to PDY (surrendered to military authorities) – 23 September 1988 10. Court-martial charges were preferred against the applicant on 7 October 1988. His DD Form 458 (Charge Sheet) shows he was charged with absenting himself from his unit from on or about 5 July 1988 and did remain so absent until on or about 23 September 1988. 11. On 7 October 1988, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10. He understood he could request discharge for the good of the service because charges had been preferred against him under the UCMJ which authorizes the imposition of a bad conduct discharge or dishonorable discharge. He acknowledged he made the request of his own free will and was not coerced by any person. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charges 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 were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veteran’s Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State law and encounter substantial prejudice in civilian life because of an under other than honorable discharge. He elected to not submit statements on his own behalf. 12. On 22 May 1974, the applicant's immediate commander submitted a formal recommendation for discharge under the provisions of AR 635-200, chapter 10, for the good of the service, with an entry level discharge. His noted, “In my opinion, this Soldier has no motivation for continued service, and will not respond to either counseling or rehabilitation.” 13. On 14 December 1989, the separation authority approved the recommended discharge under the provisions of AR 635-200, chapter 10, for the good of the service, with an entry level discharge. 14. The applicant's DD Form 214 shows he was discharged on 9 January 1989, under the provisions of AR 635-200, chapter 10, for the good of the service – in lieu of court- martial, in the rank/grade of Private/E-1. His service was uncharacterized, and he received a separation code of KFS and a reentry code of RE-3, 3B, 3C. He completed 5 months and 30 days of net active service with lost time from 7 May 1988 to 22 September 1988. 15. He provides VA, Board of Veterans’ Appeals, Docket number 20-25-562A, dated 29 July 2022 shows the VA reopened the applicant’s claim for service connection for an acquired psychiatric disorder based on new material evidence. a. In June 1996, the Regional Office denied the applicant’s claim for service- connected disability for a nervous disorder, noting diagnosis of depressive disorder, psychotic disorder, cocaine and alcohol abuse, chemical dependency, and cocaine- induced psychiatric disorder. b. Applications to reopen his previous claim for a service-connected disability for an acquired psychiatric disorder were denied in December 2004, June 2011, and February 2016. Since the most recent denial, additional medical records and statement were submitted. Therefore, the applicant’s request to reopen the claim for acquired psychiatric disorder was granted. c. The new evidence submitted by the applicant consisted of a May 2021 submission, wherein he discusses his mental health symptoms in detail, describing how they began in service and continued since. d. The VA determined a remand was needed to conduct a medical opinion as to the etiology of the applicant’s acquired psychiatric disorders. The February 2016 opinion found that his in-service symptoms were due to his wife leaving him and post-service diagnosis were mostly substance abuse related. e. An administrative decision issued by the VA in April 2020 determined the applicant’s discharge was under honorable conditions and therefore he was entitled to VA benefits. 16. There is no indication the applicant applied to the Army Discharge Review Board for review of his discharge within that board’s 15-year statute of limitations. 17. The pertinent Army regulation in effect at the time provided discharges under the provision of Army Regulation 635-200, chapter 10, where voluntary requests from the Soldier in lieu of a trial by court-martial. Normally, an under other than honorable conditions characterization was considered appropriate; however, when the characterization of service under other than honorable conditions was not warranted for a Soldier in an entry level status, service will be uncharacterized. 18. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. 19. MEDICAL REVIEW: a. The applicant requests an upgrade of his uncharacterized discharge to honorable. 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 22 March 1988; 2) The applicant was psychiatrically hospitalized from 25 April – 27 April 1998 for suicide attempt via overdose; 3) Court-martial charges were preferred against the applicant on 7 October 1988. He was charged with absenting himself from his unit from on or about 5 July 1988 and did remain so absent until on or about 23 September 1988; 3) On 7 October 1988, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10; 4) The applicant's DD Form 214 shows he was discharged on 9 January 1989, under the provisions of AR 635-200, chapter 10, for the good of the service – in lieu of court-martial, in the rank/grade of Private/E-1. His service was uncharacterized. 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. Included in the applicant’s casefile was a Standard Form 502 (Narrative Summary) that showed, in part, the applicant was psychiatrically hospitalized on 25 April 1998 for an attempted suicide by overdose. During the duration of is hospital stay the applicant revealed his actions were not suicided attempts, rather he was distressed and upset about the possibility of his wife leaving him, and in a slightly destructive manner, took aspirin for a headache until he effectively had a mild overdose. The applicant was diagnosed with Adjustment Disorder with Acute Depression and discharged on 27 April 1998 with a recommendation for outpatient follow-up. There is no documentation the applicant engaged in BH follow-up care. No other military BH-related documents were provided for review. d. A review of JLV showed the applicant 100 SC for Schizoaffective Disorder. VA C&P Examination dated 23 September 2022, showed applicant reported a history of psychosis, characterized by auditory hallucination, with onset during military service secondary to negativity from his superiors and feelings of isolation. The applicant reported that while psychiatrically hospitalized for a suicide attempt, during service, he spoke with a therapist and psychiatrist about the auditory hallucination. The applicant reported onset of symptoms around 1998 and the examiner noted he was first diagnosed with schizophrenia in 1990. The applicant also reported a history of five psychiatric hospitalizations, with the most recent occurring approximately ten years prior. His reported current symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, flattened affect, speech intermittently illogical, obscure, or irrelevant, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or a work-like setting, inability to establish and maintain effective relationships, suicidal ideation persistent delusions or hallucinations, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The examiner determined the applicant met diagnostic criteria for Schizoaffective Disorder, Depressive Type. e. Encounter note dated 17 September 2010 showed the applicant was seen for a 10-minute walk-in visit in an attempt to establish BH care at the Upstate NY VA as he had recently moved to the area. He reported “still experiencing auditory and visual hallucination” but denied that they were command in nature or that he was frightened by them. He also reported currently being prescribed medication through the Troy CBOC. The applicant was scheduled for a full intake. During the intake the applicant reported not having connection with any VAMC prior to 16 September 2010 but had a history of Schizophrenia, Undifferentiated Type, for decades. He reported onset of visual hallucinations at age eight, characterized by seeing people coming out of light fixtures. He stated he was always able to hold it together but suffered his first suicide attempt, marked by the onset of auditory hallucination in 1988, after learning his wife was having an affair. He reported 20 suicide attempts between 1988 and 2001, typically by overdose, and approximately five psychiatric hospitalizations. The applicant was noted as currently receiving psychotropic medication through his PCM and was interested in outpatient day treatment programs. The applicant was diagnosed with Schizophrenia, Undifferentiated Type and referred for outpatient care. f. The applicant engaged in outpatient treatment with a diagnosis of record of Schizophrenia, Undifferentiated Type through 21 February 2016. He underwent his initial C&P Examination on 22 February 2016, and was diagnosed with Schizoaffective Disorder, Depressive Type and PTSD. The examiner opined that the Schizoaffective Disorder was less likely related to military service given the applicant’s “behavioral and substance abuse history as pre- and adolescent; suicide attempt while in military endorsed to be caused by wife's request for a divorce-apart from this hospitalization, there is no evidence of treatment for, otherwise, mental disorders”. He further opined that PTSD was secondary to witnessing the murder of an individual, post-service, and therefore not related to military service. The finding of Schizoaffective Disorder not being related to military service was challenged and overturned in 2022 after the review of additional medical documentation. Records showed the applicant continued in outpatient treatment for Schizoaffective Disorder and PTSD, intermittently, through April 2023. Records also show the applicant was engaged in the Homeless Veterans Program from February 2011 through December 2018. g. The applicant requests an upgrade of his uncharacterized characterization of service to honorable. He contends his misconduct was related to Other Mental Health issues. A review of the records showed that during service the applicant was diagnosed with Adjustment Disorder with Acute Depression, secondary to attempted overdose on two occasions. Post-service records showed the applicant 100 percent for Schizoaffective Disorder with onset during BCT in the form of auditory hallucination around the time of attempted suicides. As there is an association between Schizoaffective Disorder and impaired decision making, impaired reality testing, and poor judgement, there is a nexus between the applicant misconduct characterized by going AWOL and his diagnosis of Schizoaffective Disorder. As such, the applicant misconduct characterized by going AWOL was mitigated by his diagnosis of Schizoaffective Disorder. 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 100 percent SC for Schizoaffective Disorder, Depressive Type 2. Did the condition exist, or experience occur during military service? Yes. Onset of symptoms reportedly occurred during BCT. 3. Does the condition or experience actually excuse or mitigate the discharge? Yes. The applicant requests an upgrade of his uncharacterized characterization of service to honorable. He contends his misconduct was related to Other Mental Health issues. A review of the records showed that during service the applicant was diagnosed with Adjustment Disorder with Acute Depression, secondary to attempted overdose on two occasions. Post- service records showed the applicant 100 percent for Schizoaffective Disorder with onset during BCT in the form of auditory hallucination around the time of attempted suicides. As there is an association between Schizoaffective Disorder and impaired decision making, impaired reality testing, and poor judgement, there is a nexus between the applicant misconduct characterized by going AWOL and his diagnosis of Schizoaffective Disorder. As such, the applicant misconduct characterized by going AWOL was mitigated by his diagnosis of Schizoaffective Disorder. ? BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records 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. One possible outcome was to approve the applicant’s request based upon guidance for liberal consideration of discharge upgrade requests. However, the Board found insufficient evidence of mitigating circumstances and agreed that the applicant’s characterization of service was due to his entry-level status. Based upon a preponderance of the evidence the Board determined the character of service the applicant received upon separation was not in error or unjust. 2. An uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service. It merely means the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise. As a result, there is no basis for granting the applicant's request. 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, 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 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set policies, standards, and procedures to provide for the orderly administrative separation of Soldiers for a variety of reasons. a. Paragraph 3-4(2) Entry-Level status. Service will be uncharacterized, and so indicated in block 24 of DD Form 214, except as provided in paragraph 3–9a. b. Paragraph 3-7a states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier'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 states 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. d. Paragraph 3-7c states an under other than honorable conditions discharge is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of service e. Paragraph 3-9a Entry-level status separation. A separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in entry-level status, except when— (1) Characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case. (2) HQDA on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. This characterization is authorized when the Soldier is separated by reason of selected changes in service obligation, convenience of the Government, and Secretarial plenary authority. f. Chapter 10 provided that a Soldier who has committed an offense or offenses, the punishment for which, under the Uniform Code of Military Justice (UCMJ) and the Manual for Court-Martial (MCM) includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. The discharge request may be submitted after court-martial charges are preferred, against the Soldier, or, where required, after referral, until final action by the court-martial convening authority. (1) Commanders will make sure that a Soldier will not be coerced into submitting a request for discharge for the good of the Service. The Soldier will be given a reasonable time (not less than 72 hours) to consult with consulting counsel and to consider the wisdom of submitting such a request for discharge. (2) Consulting counsel will advise the Soldier concerning the elements of the defense, burden of proof, possible defenses, possible punishments, provisions of chapter 10, requirements of voluntariness, the type of discharge normally given under the provisions of this chapter, rights regarding the withdrawal of the Soldier’s request, loss of VA benefits, and prejudice in civilian life because of the characterization of the discharge. (3) A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the Service. However, the separation authority may direct a general discharge certificate if such is merited by the Soldier's overall record during the current enlistment. For Soldiers who have completed entry level status, characterization of service as honorable is not authorized unless the soldier's record is otherwise so meritorious that any other characterization clearly would be improper. When characterization of service under other than honorable conditions is not warranted for a Soldier in entry level status, service will be uncharacterized. f. Section II (Terms): (1) Character of service for administrative separation - A determination reflecting a Soldier’s military behavior and performance of duty during a specific period of service. The three characterizations are honorable, general (under honorable conditions), and under other than honorable conditions. The service of Soldiers in entry-level status is normally described as uncharacterized. (2) Entry-level status - For Regular Army Soldiers, entry-level status is the first 180 days of continuous AD or the first 180 days of continuous AD following a break of more than 92 days of active military service. 3. 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 regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court- martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice. This guidance does not mandate relief but provides standards and principles to guide Boards in application of their equitable relief authority. a. 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, United States 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) AR20220011676 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1