IN THE CASE OF: BOARD DATE: 19 July 2023 DOCKET NUMBER: AR20220011682 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Marriage Certificate * College transcript 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 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: a. During the time of his misconduct, he had started drinking because his fiancé and he had split up because he informed her that he was gay. They were living off base and had financed furniture. His finances plummeted from there until after his discharge. b. Since his separation he is financially responsible, gone to college, and earned a degree. He owns a home with his spouse which is almost paid for. When he was in the service he was still a child, had no experience with having to handle finances. He was struggling with his sexuality even before he enlisted. 3. On his DD Form 149, he indicates mental health is related to his request. However, he did not provide medical documentation of a mental health diagnosis. 4. The applicant enlisted in the Regular Army on 11 June 1984 for 3 years. He completed training with award of military occupational specialty 94F (Hospital Food Specialist). The highest grade he held was E-4. 5. The applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice on the following dates for the indicated offenses: * 6 November 1985, for failure to patriciate in physical fitness training * 15 January 1986, for fraudulently obtaining services from the City of Frankfurt, Germany by failure to pay streetcar fares on 6 August and 17 August 1985; his punishment included reduction to E-3 (suspended) * 13 March 1986, suspended punishment vacated due to being disrespectful in speech and manner and failure to follow a directive from a commissioned officer * 21 May 1986, for deflection of duty and disrespectful language toward a superior noncommissioned officer; his punishment included reduction to E-2 6. On 11 August 1986, the applicant was notified of initiation of separation action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, due to misconduct involving civilian and military authorities resulting from numerous unpaid debts, mismanagement of personal financial matters to include: failure to repay numerous loans to financial institutions, overdrawn checking account, numerous dishonored checks, suspension of check cashing privileges; and unsatisfactory job performance 7. The applicant consulted with legal counsel. He was advised of the basis for the contemplated discharge, the possible effects of an under honorable conditions discharge, and the procedures and rights that were available to him. He elected to submit a statement in his own behalf; however, no statement is of record. 8. The applicant's immediate commander formally recommended his separation from service under the provisions of Army Regulation 635-200, Chapter 14, with a general discharge. 9. On 20 August 1986, the applicant's intermediary commanded recommend approval of the separation and recommend waiver of rehabilitation requirements. 10. On 10 September 1986, the appropriate authority approved the discharge recommendation, waived the rehabilitation requirements, and directed the applicant be issued a DD Form 257A (General Discharge Certificate). 11. The applicant was discharged on 1 October 1986, in the pay grade of E-3. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct – a pattern of misconduct and his service characterization was under honorable conditions (general). He was credited with 2 years, 3 months, and 21 days of net active service. 12. In determining whether to grant relief the Boards for Correction of Military/Navy Records (BCM/NR) can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 13. MEDICAL REVIEW: a. Background: The applicant is requesting an under honorable conditions (general) discharge be upgraded to an honorable discharge. The applicant contends other mental health mitigates 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 enlisted in the Regular Army on 11 June 1984. * The applicant accepted non-judicial punishment (NJP) on the following dates for the indicated offenses: 6 November 1985, for failure to patriciate in physical fitness training; 15 January 1986, for fraudulently obtaining services from the City of Frankfurt, Germany by failure to pay streetcar fares on 6 August and 17 August 1985; 13 March 1986, suspended punishment vacated due to being disrespectful in speech and manner and failure to follow a directive from a commissioned officer; and 21 May 1986, for deflection of duty and disrespectful language toward a superior noncommissioned officer. * The applicant's commander notified the applicant on 11 August 1986, that he was initiating actions to separate him under the provisions of Army Regulation 635-200, Chapter 14-12, with a general discharge. The reasons for the discharge recommendation were listed as “your misconduct involving civilian and military authorities resulting from numerous unpaid debts, mismanagement of personal financial, to include failure to repay numerous loans to financial institutions, overdrawn checking account, numerous dishonored checks, suspension of check cashing privileges, unsatisfactory job performance, and 2 incidents ( 6 Aug 85 and 17 Aug 85) of fraudulent in obtaining services (failure to pay street car fares to the city of Frankfurt).” * The applicant was discharged on 1 October 1986 under AR 635-200, Chapter 14- 12b for misconduct – a pattern of misconduct. He was discharged with an under honorable conditions (general) discharge. c. Review of Available Records Including Medical: The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149, his ABCMR Record of Proceedings (ROP), DD Form 214, marriage certificate, college transcript, 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, though minimal data was available. Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. The applicant asserts that his misconduct was mitigated by other mental health, as he had started drinking because his fiancé and he had split up secondary to him informing her that he is gay. In addition, with the separation came financial struggles. There are no electronic health records (EHR) from his time in service to review, and he did not provide any medical documentation to support his assertion of mental health concerns during this time. His separation packet indicates that a mental and physical examination occurred, however copies were not provided in his record. Hence, there is insufficient evidence provided to support that the applicant was ever treated or diagnosed with any mental health condition while in the service. e. Per a review of the applicant’s EHR, the applicant is not service connected for any mental health conditions, he has not been diagnosed with any mental health conditions through the VA, and community health summaries present in his record do not list any mental health diagnoses. No additional medical or mental health records were provided to support the contention of any mental health conditions. In summary, there is insufficient evidence that a mental health condition was present during service, after, or currently. f. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is insufficient evidence to support the applicant had a condition or experience at the time of service that mitigated his misconduct. Though, 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? Unclear. The applicant asserts he has an “other mental health” condition, though did not specify what. He also stated he was drinking but did not clarify if he is asserting an alcohol use disorder, and at this time a stand- alone substance use disorder is not a mitigating condition. (2) Did the condition exist, or experience occur during military service? Yes. The applicant contends that he experienced this condition during his time in service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. There is insufficient evidence beyond self-report that the applicant was experiencing a mental health condition at the time of service, nor since. The applicant reported “drinking,” though even if he was experiencing a substance use disorder (SUD), SUDs are not a mitigating condition. It is clear he was facing significant psychosocial stressors at the time, though this would not have mitigated his behaviors, and his behaviors are not sufficient to establish a history of a condition during active service. However, his assertion alone is worthy of consideration by the Board. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, 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 her characterization of service. Upon review of the applicant’s petition, available military record and medical review, the Board concurred with the advising official finding insufficient evidence to support the applicant had a mental health condition or experience at the time of service that mitigated his misconduct. The Board noted, beyond self-report that the applicant was experiencing a mental health condition at the time of service, nor since. The applicant reported “drinking,” though even if he was experiencing a substance use disorder (SUD), SUDs are not a mitigating condition. 2. The Board found the applicant provided insufficient evidence of post-service honorable conduct that might have mitigated the discharge characterization. The applicant was discharged for misconduct and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. Based on this, the Board denied relief. 3. This board is not an investigative body. The Board determined despite the absence of the applicant’s medical records, they agreed the burden of proof rest on the applicant, however, he did not provide any supporting documentation and his service record has insufficient evidence to support the applicant contentions of a discharge upgrade due to mental health conditions. ? 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 three 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 three-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 the Army Review Boards Agency (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 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 14 (Separation for Misconduct) establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. d. Paragraph 14-12b (A pattern of misconduct) states a Soldier may be discharged for pattern of misconduct consisting of one of the following: (1) Discreditable involvement with civil or military authorities. (2) Discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army. 4. 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 BCM/NRs 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. Boards are to give a 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. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs on 25 July 2018, 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 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 grounds. 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.) AR20220011682 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1