IN THE CASE OF: BOARD DATE: 8 June 2022 DOCKET NUMBER: AR20220000180 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code (USC), 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. On his DD Form 149, the applicant notes other mental health issues are related to his request, as contributing and mitigating factors in the circumstances that resulted in his separation. He did not provide a statement in support of his request. 3. The applicant enlisted in the Regular Army on 13 February 1996, for a period of 3 years. After completion of required training he was awarded military occupational specialty 92Y (Unit Supply Specialist). The available record is void of the applicant’s non-judicial punishments and/or military police reports. Additionally, his mental status evaluations are not available for review. 4. On an unknown date, the applicant's immediate commander notified the applicant of his intent to initiate separation actions against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, by reason of misconduct – pattern of misconduct. As the specific reasons his commander cited: * wrongful use of a controlled substance * destruction of private property, aggravated assault consummated by battery * drunk and disorderly, communicating a threat, and failure to obey an order 5. On 11 January 1998, the applicant acknowledged receipt of the proposed separation notification memorandum and was advised of the rights available to him. He waived his right to consult with counsel and to appear before an administrative separation board. He elected not to submit a statement in his own behalf. 6. The applicant's immediate commander formally recommended the applicant's separation from service under the provisions of Army Regulation 635-200, Chapter 14, by reason of misconduct. The separation authority approved the recommended action and directed the issuance of a DD Form 257A (General Discharge Certificate). 7. Accordingly, the applicant was discharged on 13 February 1998. He was credited with 2 years and 1 day of net active service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms his service was characterized as under honorable conditions (general). 8. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief BCM/NRs 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 9. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 10. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Solutions (HAIMS) was not in use at the time of his service. His hardcopy medical records were not available for review. A review of his service record indicates he completed a separation physical and mental status evaluation and was cleared for administrative separation. The applicant asserts Other mental health was issue related to his upgrade request. No medical documentation of any psychiatric conditions was provided for review. A review of JLV indicates the applicant has received treatment at the VA since February 2000. On 21 Jan 2004, he was seen for anxiety and occasional panic attacks. He was diagnosed with Anxiety State, unspecified. On 11 Sept 2010, his primary care provider submitted a consult for a behavioral health evaluation due to depressive symptoms. Three attempts were made to contact the veteran but all were unsuccessful. On 11 Jan 2018, he was admitted for detoxification for methamphetamine and alcohol. He reported a 20-year history of alcohol use and 2 years of methamphetamine use. He reported working as a self-employed mechanic and being married for 7 years. He was diagnosed with Alcohol Use Disorder, severe and Stimulant Use Disorder, severe. On 16 Jan 2018, he completed an intake for a substance use disorder treatment program. His last substance abuse treatment appointment was 12 Feb 2018. On 17 Sept 2018, he was seen in the ER. He reported auditory and visual hallucinations for the past year. His wife reported he was discharged from a civilian hospital after treatment for methamphetamine induced psychosis. He reported experiencing paranoia with methamphetamine use. His wife reported he was facing a class 4 felony. On 14 Jan 2019, he was seen in the ER for hallucinations and reported continued methamphetamine use. He was diagnosed with Other Stimulant Dependence with Stimulant Induced Mood Disorder. He was seen in the ER on 19 Jan 2019 for the same issue. On 8 Aug 2019, he reported that he was started on Risperidone while incarcerated. He stated that he was taking the Quetiapine prescribed by the VA but was now living on the streets and using drugs. On 3 Oct 2019, he reported doing well and was compliant with his medication. He was diagnosed with Psychosis due to general medical condition and Methamphetamine Use Disorder. On 14 Nov 2019, his diagnosis was changed to Unspecified Schizophrenia. On 31 Jan 2020, he was readmitted to the substance abuse treatment program. On 19 Oct 2020, his diagnosis was changed back to Psychosis secondary to general medical condition. On 21 Jun 2021, he reported he attempted suicide on 16 Jun 2021 after smoking methamphetamines and marijuana. He stated that he is on probation and in legal trouble for DV against his wife. He was diagnosed with Other Stimulant Dependence. On Aug 2021, he completed an intake for a substance abuse treatment program. He did not return for treatment. Treatment note dated 5 Dec 2021 indicates he was psychiatrically hospitalized at a non-VA facility and discharged with a diagnosis of Major Depressive Disorder with psychosis. On 8 Dec 2021, he was psychiatrically admitted due to agitation and hallucinations in the context of using methamphetamine. He was discharged on 14 Dec 2021. On 14 Feb 2022, he was discharged from the residential substance abuse program. He has a service connected disability rating of 20% for Degenerative Arthritis of the Spine effective 25 Oct 2020. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is no documentation to support a behavioral health diagnosis at the time of his discharge. His first behavioral health diagnosis was 2004, six years after his discharge. There is no documented psychiatric condition during his military service to consider with respect to mitigation of his misconduct. a. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (a) No (2) Did the condition exist or experience occur during military service? (a) No (3) Does the condition or experience actually excuse or mitigate the discharge? (a) N/A (4) Does the condition or experience outweigh the discharge? (a) N/A 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. Upon review of the applicant’s petition, available military records and the medical review the Board concurred with the medical official finding no documentation to support a behavioral health diagnosis at the time of his discharge. His first behavioral health diagnosis was 2004, six years after his discharge. He 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. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, 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, United State 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. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions (UOTHC) was normally considered appropriate. However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record. 4. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised 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. 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 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. 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, BCM/NRs 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) AR20220000180 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1