IN THE CASE OF: BOARD DATE: 24 August 2022 DOCKET NUMBER: AR20220001908 APPLICANT’S REQUESTS: * Upgrade his general discharge under honorable conditions to honorable * In effect, change the applicant’s narrative reason for separation and separation code (SPD) to reflect a separation based on “Secretarial Authority” * In effect, amend the applicant’s reentry (RE) code to show “RE-1” (no waiver required for reenlistment) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Exhibit A – DD Form 214 (Certificate of Release or Discharge from Active Duty) * Exhibit B – Applicant’s self-authored statement * Exhibit C – Applicant’s Department of Veterans Affairs (VA) medical records (with Army Review Boards Agency (ARBA) memorandum addressing “Confidential” markings on the medical records) * Exhibit D – Service Treatment Records * Exhibit E – Letter from Lieutenant Colonel (LTC * Exhibit F – Extract from the applicant’s official military personnel file * Exhibit G – County record of applicant’s driving while intoxicated (DWI) charge * Exhibit H – Seven letters of support * Exhibit I – U.S. Marine Corps (USMC) Certificate of Course Completion; Noncommissioned Officer (NCO) Career Nonresident Program, Leadership * Exhibit J – BAMC (Brooke Army Medical Center) Form 902 (Request for Personnel Action) * Exhibit K – College Transcripts and Two Certificates * Exhibit L – International Honor Society letter * Exhibit M – Five letters of support FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 he comes from a family of patriots; his grandfather, who was more like the applicant’s father, attempted to enlist during both World War I and World War II, but he was too young for the first and too old for the second. However, the applicant’s two uncles served in the Army during the Korean War, and “I too became a Patriot and saw the need to participate in any way I could, volunteering with rallies, working in hospitals, and trying to achieve academic excellence to be all I could be.” a. The applicant never thought of enlisting until the start of the Gulf War; because the war was televised, the applicant saw his fellow Americans deploy, and he felt a sudden urge and feeling he should be in Kuwait. The applicant picked up the phone and called an Army recruiter. b. Because he had volunteered to be a combat medic, the applicant took his training seriously and with a sense of urgency; he graduated at the top of his class in both basic combat training (BCT) and advanced individual training (AIT), and, throughout, he did all he could to help his fellow recruits achieve both academic and military success. While in BCT, his chain of command selected him for “Platoon Sergeant,” and placed him in charge of 50 men; as he remembers it, he received no reprimands or write-ups, and he believes his training went very well. At the end of AIT, he heard that Iraq was withdrawing and that he and the other Soldiers would receive new orders; those orders ended up assigning the applicant to BAMC at Fort Sam Houston, TX, but he received additional instructions attaching him to a U.S. Army Reserve (USAR) unit that still was on orders to deploy; while he periodically trained with the USAR unit, his actual place of duty was BAMC’s Oncology Clinic. c. Upon his arrival at the Oncology Clinic, the applicant immediately felt needed, and he was eager to help. He found the confidence and expertise of the clinic’s seasoned and professional staff to be palpable, but he noticed something unnerving in his early conversations with them; he soon realized what it was. Within a week, the applicant observed a cancer patient all alone with the curtain drawn and slowly dying; the patient was a “Do Not Resuscitate (DNR),” and, after a physician came and pronounced him deceased, the staff instructed the applicant to wrap the body in plastic and bring it to the morgue. Nothing in his training had prepared him for this moment, and he had no clue as to how to wrap a body in a plastic sheet, nor did he have any real desire to do so. He had never seen a deceased person before this, but he was, after all, “a medic in BDUs and there was no whining there,” so he entered the bedside, drew the curtain, and started to pray for the man; the applicant then began to cry. d. The applicant subsequently figured out how to wrap the body, and he proceeded to the morgue, but once there, the applicant realized he did not know which cooler was empty, so he had to open each individual drawer until he found one without a body. In some cases, the coolers contained bodies, and in others, there were just body parts; the entire scene was very disturbing, and, unfortunately, this experience became one that was all too common. e. At the time, America was actively looking for an effective treatment and cure for cancer, and the Army Medical Corps was on the forefront of conducting trials; however, this also meant that, many times, the experimental treatments resulted in death, and, with each death, came to need to wrap the body in plastic and transport it to the morgue. As some of the younger medics were apprehensive about dealing with dead bodies, the applicant found himself volunteering to take on the task; after all, the cause was noble and necessary, and it was his job. The applicant observes, “during the entirety of (my) assignment to the Oncology Unit, I never got used (to) death or handling dead bodies. To this day, I have nightmares about it.” f. The applicant took an extra interest in the various diagnoses and individual treatment protocols for each of his patients; the patients deserved the best the Army could give during their struggle with cancer, and the applicant made their comfort his priority, but he soon realized, even with a staff of medical professionals, no one wanted to talk about work after their shifts. The applicant’s motto became, “work hard, play hard,” “as this was the culture that had preceded my arrival to Fort Sam Houston”; however, this quickly translated to, “work hard, ignore your feelings, find some friends after work, drink, and then repeat.” g. Rather than improving the way he felt, the applicant’s partying life-style and drinking only made matters worse. By not addressing the true source of his pain, the applicant allowed his issues to build; part of the problem was that the applicant would develop an emotional connection with his patients, and he found himself caring too much. Inevitably, as his patients’ conditions deteriorated and they eventually died, each death was accompanied by the requirement to wrap the body in plastic and move it to the morgue. This all made the applicant feel helpless, and his distress only exacerbated over time. h. After serving almost 2 years in the Oncology Clinic (a period twice as long as that of most medics), the applicant realized he needed to change jobs for the sake of his mental health. In February 1994, his leadership transferred him to what was supposed to be a less stressful environment, the Dermatology Clinic, but, unfortunately, the clinic’s NCO-in-charge (NCOIC), Staff Sergeant (SSG) created the opposite result. Although SSG initially supported the applicant, his “distaste for me began after declining his invitations to join him in ‘trainee-land’ to scout the female recruits.” At the time, the applicant was engaged to a University student, to whom he has now been married for over 26 years; the applicant had no desire to participate in SSG activities, and this, evidently, displeased SSG such that he began to harass the applicant. For example, SSG would force the applicant to perform physical training (PT) in the morning, despite the applicant being the only Soldier present; in addition, SSG required the applicant to rake leaves alone after work, even though the clinic already had a yard service. Others in the clinic noticed what SSG was doing; LTC subsequently wrote a letter for the applicant’s separation board detailing the severity and frequency of SSG harassment (included with this application). i. The applicant’s experiences in the Oncology Clinic and the harassment he later had to endure at the Dermatology Clinic compounded his feelings of stress, anxiety, and depression; while outwardly he refused to break, he inwardly felt himself spiraling downward, and he leaned even more on alcohol to cope with his feelings. For a short time, the applicant felt as though he was leading a double life; on one hand, SSG mistreatment caused the applicant’s mental health to decline, and on the other, the applicant excelled in his clinical roles, earning the respect of the physicians and nurses with whom he served. Additionally, the applicant earned recognition as the Soldier of the Month and Soldier of the Quarter; he completed the USMC NCO correspondence course while waiting to attend Primary Leadership Development Course (PLDC); and, based on the applicant’s excellent medical performance in the Dermatology Clinic, senior NCOs recommended him for training in military occupational specialty (MOS) 91W (Nuclear Medicine Specialist). j. Upon completing 2 years and 22 weeks of his enlistment, and as the applicant approached his expiration term of service (ETS), an Army retention officer offered the applicant an opportunity to reclassify into MOS 91C (Practical Nurse) under the “BEAR (Bonus Extension and Retraining) Program.” Because of this opportunity, the applicant extended his enlistment contract by 3 years. Unfortunately, he had nearly completed his outprocessing when the local police pulled him over for speeding and charged him with DWI, a mistake he will forever wish he could change. The applicant notes that, after his arrest, release, and return to the base, the Army never provided him with a lawyer and, he points out, he never waived his right to an attorney. The applicant asserts that instead, his leadership gave him a choice: accept civilian punishment or choose military disciplinary action (i.e., nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) or trial by special court-martial); if the applicant opted for civilian disposition of his case, the military would not punish him. Given the minimal information provided, the applicant chose civilian punishment because he believed doing so would save his military career; little did he realize additional military punishment would ensue. k. Despite what his leadership had said and the applicant’s understanding of the process, the retention officer removed the applicant from the BEAR Program and transferred the applicant to a different post; the applicant did not learn of this until he received the orders for his second term of service. Had he understood the Army would punish him this way, he would have opted for a military trial, believing that his prior outstanding military service record, coupled with the state of his mental health, would have sufficiently mitigated any punishment. The applicant was additionally unaware that his leadership could later use his civilian punishment against him in an administrative separation action. l. With the news of his removal from 91C school, the applicant hit bottom; he no longer saw himself as a viable member of the Army, and, with the previous onset of post-traumatic stress disorder (PTSD) and depression, the applicant only felt more helpless and lost. “On top of that, Army leadership treated me like I had given our position away to the enemy – I had nowhere to turn,” so the applicant once again sought relief through alcohol. In March 1995, the applicant self-referred himself to the Mental Hygiene Clinic, but the result was a brief and unhelpful discussion with a social worker. A few weeks later, the applicant self-reported to the hospital because of suicidal ideations and medical authority admitted him for the mandatory 3-day period; however, during this “involuntary jailing,” the treatment was minor, and, to the best of the applicant’s recollection, the Army never offered him any follow-up therapy or counseling. m. The applicant reached out to his chaplain and even went so far as to be baptized, believing this would save his soul, but he did not talk to his superiors about his problems because they were new, and he did not know them; he feared that disclosure of his mental health issues would negatively affect his military career. The applicant continued his alcohol abuse, and he declares, “I wanted help, and I knew I needed help, but the Army could not or would not give me the help I needed to cope with the problems that all felt like they were just in my head. Instead, the only resource provided to me was ‘community counseling’ – off-base, civilian AA (alcoholics anonymous). But the few weeks in AA did not save me from the stress, depression, and anxiety. And approximately one year after my DWI, I received another alcohol-related ticket from civilian police, which led to my separation.” n. Only after his chain of command initiated separation action did the Army finally offer the applicant access to a therapist; the applicant quickly realized how helpful it was to have someone to talk to, and the results of the therapy makes the applicant now believe he could have avoided his alcohol-related issues and received an honorable discharge if he had received therapy sooner. Additionally, during separation processing, they told the applicant of his right to counsel, and the applicant’s service record shows he requested counsel, but none was provided. Because of this, no one ever advised the applicant of the implications of a general discharge under honorable conditions; for example, he did not know his initial honorable service would be “wiped out” by his general discharge, and he would lose his eligibility for the Montgomery GI Bill, causing them to refund his $1,200 GI Bill deposit against his wishes. Further, he would no longer receive the $17,500 bonus the Army gave him for volunteering during wartime. The lack of counsel resulted in the applicant not asking to present his case before an administrative separation board and opting not to submit a statement or evidence in his own behalf. o. Following his Army separation, and after several years, the applicant started his mental health treatment; behavioral health providers diagnosed him with anxiety disorder and depression and prescribed medication for him. Throughout his behavioral health struggles, the applicant and his wife have sought to raise their children in a healthy environment, and, despite setbacks, the applicant was able to continue his education. The applicant earned licenses as an EMT (Emergency Medical Technician) and hemodialysis technician. Additionally, his high grade point average at the local community college, where he was pursuing a nursing degree, resulted in his induction into an international honor society; unfortunately, he had to drop out of college due to a lack of funds and, because of his character of service, he did not qualify for any State or local educational benefits. The applicant also points out that he has maintained gainful employment since his discharge, and he had contributed to his community by performing volunteer work. Although he continues to experience emotional challenges from the loss of his benefits and from what feels like abandonment by the Army, he nonetheless is proud of his service to his country, and he appreciates the time he spent in the Army. The applicant requests the Board’s favorable consideration of his requests, stating, “An upgrade would make a tremendous difference in my life emotionally, have a great impact on my family, and would make a difference in many other ways.” 3. Counsel argues, because the applicant received an honorable discharge after his first term of service, the applicant’s DD Form 214 should also reflect an honorable character of service. Counsel asserts that the Board has jurisdiction over the applicant’s requests and offers citations from USC and CFR (Code of Federal Regulations) that outline the Board’s processes for addressing material errors. Counsel continues with the following contentions: a. The Army violated the applicant’s due process rights by failing to provide or advise the applicant of his right to legal counsel during his military sentencing. First, the Army violated the applicant's due process rights after failing to offer or provide him with legal counsel during military punishment for his DWI; such failure contributed to Applicant's discharge for "patterns of misconduct." Second, the Army violated its regulations by failing to counsel and rehabilitate applicant after the incidences of misconduct. (1) Per United States v. Booker (U.S. Court of Military Appeals, 1977), a service member is entitled to the assistance of counsel in deciding whether to waive his right to trial by court-martial and instead accept NJP. (2) The Army violated the applicant’s due process rights when it failed to inform the applicant of his right to counsel and/or failed to provide applicant with counsel when the applicant faced civilian DWI charges; the result was the applicant unknowingly waived his rights. (a) After the applicant’s civilian arrest for DWI, the applicant’s leadership gave him a choice between having his case resolved by civilian authority or allowing the military to handle the matter; the applicant opted for civilian authority to address the charge. During the applicant’s discussion with his command, the Army never notified him of his right to counsel and failed to provide him with counsel. (b) By contrast, the applicant’s service record has ample evidence the Army informed the applicant of his right to counsel after his arrest for disorderly conduct and, subsequently, during his involuntary separation proceedings. (c) Despite the applicant’s selection of civilian disposition of his case, the applicant’s command punished him anyway; specifically, “Applicant’s non-judicial punishment included removal from 91-Charlie School….” b. Apparently citing the version of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) that was effective 19 December 2016, counsel contends the Army failed to adequately counsel or rehabilitate the applicant, as mandated by paragraphs 1-16 (Counseling and Rehabilitative Requirements), and 14-2 (Policy), subparagraphs (a) and (d) (both stipulating that commanders counsel Soldiers and attempt rehabilitation). (1) Counsel asserts that, given the applicant’s self-authored statement and the lack of documentary evidence, the Army did not provide the applicant with adequate counseling or rehabilitation for either of the applicant’s alcohol-related incidents; instead, the Army placed the burden on the applicant to rehabilitate himself. (2) Counsel continues, “The only ‘counseling’ the Army provided was written counseling statements, which (are) not proper counseling but merely recordings of an infraction.” Such written statements do not equate to a command’s “maximum use of counseling and rehabilitation.” (3) The mental health evaluation completed after the initiation of the applicant’s separation processing does not satisfy the chapter 14 requirement to make attempts to rehabilitate or develop the applicant into a satisfactory Soldier before the initiation of separation proceedings. Counsel quotes LTC who declared the applicant’s “chain of command failed him,” and failed to rescue the applicant “when [the Army] still had time to salvage a good Soldier and make him better.” c. The applicant’s general discharge was unjust because the Army treated the applicant differently than what current policies dictate; the applicant did not have consulting counsel during the involuntary separation process (now required per paragraph 2-4c (Administrative Board Procedure – Notice – Soldier Given a Reasonable Time to Consult with Counsel), AR 635-200). (1) Counsel contends, “Although the Army advised applicant of his right to consulting counsel before separation, applicant did not receive consulting counsel during his involuntary separation process.” In addition, the applicant’s service record is void of a written refusal or waiver of his right to counsel. “Contrarily, today’s standards require the appointment of consulting counsel regardless of Soldier’s choice as well as signatures of both consulting counsel and Soldier if counsel is refused or waived. Because applicant did not have consulting counsel, he was unaware of many of the alternative options available or the effects of his separation proceeding choices (or lack thereof).” (2) “The lack of counsel is particularly concerning here because applicant’s mental health issues likely impaired his ability to make intelligent and knowing decisions at the time. Had the Army provided applicant with consulting counsel to advise him of the consequences of accepting a general discharge, or the procedures for challenging the suggested discharge characterization, applicant would have made different choices, such as requesting a separation hearing to explain that his impaired state of mind (his PTSD and depression) caused his misconduct instead of waiving it.” d. The applicant’s mental health issues, which include PTSD, and the applicant’s quality of active duty service and his post-service contributions, are sufficient to warrant a recharacterization to honorable. (1) Concerning the applicant’s quality of service: (a) Counsel points out the applicant received several promotions while on active duty: private (PV2)/E-2, private first class (PFC)/E-3, and specialist (SPC)/E-4. Additionally, the applicant received numerous accolades, such as the Army Service Ribbon, National Defense Service Medal, and the Army Good Conduct Medal, and his leadership recognized him for Soldier of the Month. “Indeed, applicant’s service was so outstanding, Sergeant recommended him for the selective nuclear program.” (b) Counsel goes on to note, “Even applicant’s Army commanders believed his quality of service was meritorious. Upon his discharge, applicant’s commanders recommended he receive a general discharge instead of an under other than honorable discharge.” “Applicant's commanders must have believed his service to be meritorious because a discharge under other than honorable conditions is normally appropriate for a servicemember discharged with a pattern of misconduct.” (2) Regarding the effects of the applicant’s behavioral health issues and alcohol abuse as mitigating factors: (a) The applicant’s PTSD and major depression adversely affected the applicant’s ability to conform to Army standards of conduct. Furthermore, the applicant did not enter active duty with either mental health issues or alcohol dependence; he acquired both during his service after having to perform “horrific tasks,” such as removing catheters and dentures from corpses and wrapping dead bodies in plastic for transport to the morgue. Because of his exposure to the foregoing trauma, the applicant stayed in a near-constant state of hopelessness and suffering, and he began his alcohol abuse as a means of self-medication. (b) SSG harassment only served to exacerbate the applicant’s behavioral health conditions, to the point where, on 12 April 1995, the applicant required hospitalization for depression. (3) The Board should grant an upgrade to honorable after considering the applicant’s post-service contributions; in support, counsel reiterates the accomplishments listed by the applicant in his self-authored statement. 4. The applicant’s service records show: a. On 22 January 1992, the applicant enlisted into the Regular Army for 2 years and 22 weeks; when he entered active duty, the applicant was 23 years old. Upon completion of initial entry training and the award of MOS 91B (Medical Specialist), orders assigned the applicant to A Company, BAMC, and he arrived at his unit, on 5 June 1992. b. The applicant provides a Standard Form (SF) 600 (Health Record – Chronological Record of Medical Care), dated 8 September 1992, which shows he self- referred himself to his supporting Community Mental Health Service (CMHS); the form does not state the reason for referral but indicates the applicant’s mental status is within normal limits and the applicant requested no further follow-up. c. On or about 9 December 1993, the applicant accepted NJP for leaving the scene of an accident. The imposing commander’s punishment consisted of a forfeiture and extra duty; the associated DA Form 2627 (Record of Proceedings under Article 15, UCMJ) is unavailable for review. d. On 22 February 1994, the applicant extended his enlistment by 2 months, due to a pending personnel action. Effective 21 March 1994, the applicant’s leadership promoted him to SPC. On 22 April 1994, the applicant extended his enlistment 42 months, following his approval for the BEAR program; the applicant’s adjusted ETS became 25 February 1998; (the applicant’s service record is void of any reenlistment contracts subsequent to his extension). e. On 1 August 1994, the applicant’s troop commander awarded him the Commander’s Award for having been selected as the Alpha Company Soldier of the Quarter, 2nd Quarter, 1994. On 10 February 1995, the commander of a port command (LTC recognized the applicant with a Certificate of Achievement for the applicant’s excellent duty performance during Sealift Emergency Deployment Readiness Exercise 95-1. f. On 10 February 1995, at about 2330 hours, a patrolman with the San Antonio Police Department (SAPD) observed the applicant driving on a local highway at a high rate of speed. (1) The patrolman stopped the applicant’s vehicle, identified the applicant as the driver, and noticed the strong smell of alcohol; after conducting field tests, the patrolman arrested the applicant and transported him to the SAPD. The applicant submitted to a breathalyzer test, which showed a blood alcohol level of 0.154 percent. The applicant then appeared before the night magistrate for a DWI charge and was subsequently incarcerated in the Jail. (2) The SAPD telephoned the U.S. Air Force Police (AFPD), located at Lackland Air Force Base (AFB), and asked the AFPD to take custody of the applicant; the AFPD retrieved the applicant and subsequently transferred him to the Provost Marshal’s Office at Fort Sam Houston, who released the applicant to his unit. g. On 13 February 1995, Sergeant First Class (SFC) counseled the applicant, using a DA Form 4856 (General Counseling Form). SFC addressed the applicant’s arrest for DWI; he advised the applicant the Post Commander had directed the applicant not to drive on post. In addition, the form shows SFC told the applicant that, should this type of behavior continue, the applicant could be subject to UCMJ and/or administrative separation action. The applicant signed the form acknowledging the counseling. h. On 16 March 1995, the Commanding General, BAMC (Brigadier General (BG) issued the applicant a general officer memorandum of reprimand (GOMOR) because of the applicant’s 10 February 1995 arrest for DWI; the general noted the applicant’s blood alcohol level was registered at 0.154 percent. i. The applicant submits as evidence an SF 600, dated 21 March 1995, reflecting another self-referral to CMHS; the form indicates the applicant had been experiencing “job-related stress,” but his mental status was within normal limits. The listed diagnosis was, “Axis I: V62.20 Occupational Problem.” j. On 25 March 1995, the applicant filed rebuttal to the GOMOR. (1) The applicant acknowledged his misconduct, but he pointed out that, prior to this incident, he had exemplified discipline, dedication to duty, and esprit de corps. In addition, he had earned such honors as Soldier of the Month and Soldier of the Quarter, and he was selected for 91C school (which, unfortunately, he could not attend). (2) The applicant declared he was a highly motivated Soldier who was striving to become a greater asset for the Army; he beseeched the general to refrain from placing the GOMOR in his permanent record because it could “prove to be pernicious to my future as a Soldier in the United States Army.” (3) BG subsequently directed the GOMOR’s placement in the applicant’s official military personnel file. k. On 22 March 1995, the applicant accepted NJP for two specifications of failing to report for a Command Information Briefing, respectively, on 9 and 23 February 1995; the punishment was 10-days’ extra duty. l. On 6 April 1995, Permanent Orders (PO) awarded the applicant the Army Good Conduct Medal (1st Award) for the period 22 January 1992 through 21 January 1995; a handwritten note on the order states, “FLAGGED.” The applicant provides an extract from court records. The document shows, for the DWI offense committed by the applicant, on 10 February 1995, a civilian court found the applicant guilty, on 7 April 1995, and sentenced him to probation and a fine; Mr. was the applicant’s civilian lead defense counsel. The court document further states the applicant’s probation was terminated, on 22 April 1997. m. The applicant provides a DA Form 5570 (Health Questionnaire for Dental Treatment), dated in or around April 1995, which, under “Explain any unusual medical problems,” states, “I was hospitalized for depression, on 12 Apr 95.” In addition, the applicant submits a DA Form 4465-R (Patient Intake/Screening Record (PIR)), dated 26 April 1995; the form records the applicant’s mandatory screening by the supporting Alcohol and Drug Abuse Prevention and Control Program (ADAPCP). The form additionally reflects the applicant’s screening resulted from a DWI/DUI and a physician diagnosed the applicant with alcohol dependence; the ADAPCP team enrolled the applicant for treatment at the Community Counseling Center. n. Effective 1 August 1995, the applicant’s chain of command transferred him from A to B Company, BAMC; effective 11 December 1995, the applicant moved back to A Company. o. At about 0130 hours, on 17 March 1996, civilian police from a city located about 50 minutes from Fort Sam Houston, arrested the applicant for public intoxication. (1) The police reported that, during a traffic stop, one of the passengers (the applicant) exited the vehicle and, despite being asked several times to get back in the car, the applicant refused. The police then detected the odor of alcohol and placed the applicant under arrest for public intoxication. The police notified the applicant he was required to appear in municipal court, on 28 March 1996. (2) At about 0345 hours, the Police Department called the AFPD at Lackland AFB to report they had custody of a military member involved in an incident. The AFPD dispatched a patrol to the Police Department and took control of the applicant. (3) On arrival at AFPD headquarters, and after the AFPD had warned the applicant of his rights, the applicant declined legal counsel and agreed to make a verbal statement. The applicant disclosed that, at about 0100 hours, he and two girls were stopped by the police due to a car accident nearby; he maintained the police had never instructed him to remain in the car. (4) At about 0956 hours, the military police from Fort Sam Houston arrived and took custody of the applicant; the military police later released the applicant to his unit. (5) On 4 April 1996, the applicant paid $70 to the Municipal Court in for public intoxication. p. On 12 April 1996, the applicant’s company commander issued the applicant an administrative memorandum of reprimand. The commander stated, based on information received, the commander concluded the applicant was drunk and disorderly, on 17 March 1996; the commander reprimanded the applicant and stated this instance of misconduct was unbecoming of any Soldier in the company and could not go ignored. The applicant submitted an undated rebuttal, in which he wrote: (1) In March 1996, the applicant and several friends were celebrating a wedding; after the wedding reception, the applicant and some of his friends started driving home. Along the way, they noticed a motor vehicle accident; immediately thereafter, they heard sirens and saw flashing lights, and they were stopped by three or four civilian police vehicles. (2) The police instructed the driver of vehicle in which the applicant had been riding to get out of the car; the drivers of the other vehicles in the group also got out of their cars. After waiting about 5 or 10 minutes, the applicant decided to get out and stretch his legs. Within seconds, an officer yelled for the applicant to get back in the car. Because the applicant began to feel like the officer was infringing on his rights, the applicant asked why they were being detained; the officer seemed upset by the applicant’s question and ordered the applicant to “shut up, or [the applicant] would be spending the night in jail.” (3) The next thing the applicant knew, the police had handcuffed him and placed him in the back of a police car charged with public intoxication. The police never gave the applicant a breathalyzer or blood alcohol test, so the applicant was unable to substantiate his innocence. As to the charge of disorderly conduct, someone added that accusation without the knowledge of the Police or the applicant. q. On 1 July 1996, a Licensed Clinical Psychologist rendered a mental status evaluation of the applicant. (1) “[Applicant] was referred for evaluation by Command, per the requirements of AR 635-200, Chapter 14. [Applicant] acknowledged a history of alcohol abuse and job-related difficulties. He reported that he was hospitalized at WHMC (Wilford Hall Medical Center, Lackland AFB) for suicidal ideation and emotional problems related to his duty station. Command reported a history of misconduct, alcohol abuse, and poor motivation for continued service. [Applicant] reported that he does not wish to remain in the service but does not feel he deserves a Chapter 14.” (2) “Diagnoses: Axis I: V62.2 Occupational Problem. Axis II: V71.09 No diagnosis on Axis II. Axis III: None.” (3) The Licensed Clinical Psychologist psychiatrically cleared the applicant for administrative separation due to a lack of evidence of mental defect, emotional illness, or psychiatric disorder of sufficient severity to warrant disposition through military medical channels. r. On 18 July 1996, the applicant’s company commander advised him, via memorandum, that he was initiating separation action against him, under the provisions of paragraph 14-12b (A Pattern of Misconduct), chapter 14 (Separation for Misconduct), AR 635-200 (Personnel Separations – Enlisted Personnel). The commander’s stated reason was the applicant’s commission of several acts that constituted a pattern of misconduct. The commander informed the applicant he would recommend the applicant for a general discharge under honorable conditions, but the final decision rested with the separation authority. Additionally, the commander advised the applicant of his right to consult with counsel, and that he could submit statements in his own behalf. s. On 20 July 1996, after consulting with counsel (Major Judge Advocate General’s Corps), applicant acknowledged counsel had told him of the basis for his separation action and advised him of his available rights and the effect of waiving those rights. (1) The applicant additionally reported he understood that, if he had less than 6 years total active and reserve military service at the time of separation, and his leadership intended to separate him under paragraph 14-12b, AR 635-200, he would not be entitled to have his case heard by an administrative separation board unless the separation authority was considering him for an under other than honorable conditions discharge. (2) The applicant requested counsel and elected not to submit statements in his own behalf; he also stated he understood he might expect to encounter substantial prejudice in civilian life if issued a general discharge under honorable conditions. (3) Despite indicating his election not to submit statements, the applicant provides a letter of support from LTC written during the applicant’s separation processing. LTC wrote that he had known the applicant on a professional basis for about 1 year, when the applicant was assigned to the Dermatology Clinic. During this period, LTC had had the opportunity to observe the applicant in a clinical setting, and he found that the applicant consistently demonstrated exceptional skills, knowledge, and enthusiasm, while maintaining a positive and pleasant personality. LTC added: (a) He found it regrettable that the command was considering the applicant for separation; in LTC view, the applicant truly was a “victim of circumstance.” LTC honestly felt SSG intentionally and relentlessly harassed the applicant far beyond the applicant’s ability to cope; SSG actions broke the applicant’s spirit. (b) While LTC normally did not consider individuals as products of their environment, in the applicant’s case, he believed the extreme and unusual circumstances to which the applicant was subjected “clearly forced (him) out of control.” (c) LTC affirmed he did not condone the applicant’s incident of excessive alcohol use, but “I will conjecture that this was (an) attempt to escape the reality of his situation. I feel the system let him down, and his chain of command failed him. This is not about getting rid of a ‘bad apple’, this is a ‘black eye’ for Army leadership. We failed to rescue this individual from a tyrant when we still had time to salvage a good Soldier and make him better.” t. On 22 July 1996, the applicant’s commander filed his recommendation for the applicant’s separation. (1) Regarding the specific reasons for his recommendation, the commander cited the following: the applicant had received a company-grade NJP for leaving the scene of an accident and a summarized NJP for failing to report to his appointed places of duty. Additionally, the applicant received two memoranda of reprimand for drunk and disorderly, and drinking and driving. The commander opined the applicant’s pattern of misconduct had shown him that any further rehabilitative efforts would not be in the best interests of the Army. (2) The commander noted the applicant had received four written counseling statements, and he affirmed the applicant had been counseled about his misconduct and given ample time to rehabilitate himself. Additionally, the leadership had previously given the applicant a rehabilitative transfer, but his conduct continued to be unacceptable. u. On 27 July 1996, the separation authority (BG approved the commander’s separation recommendation, waived the regulatory requirement for further rehabilitation and training (as outlined in paragraph 1-18d (Counseling and Rehabilitative Requirements – Waivers), AR 635-200), and directed the applicant’s general discharge under honorable conditions. On 13 August 1996, orders discharged the applicant as ordered; the applicant’s DD Form 214 shows the following: * Item 12c (Record of Service – Net Active Service This Period) – 4 years, 6 months, and 22 days * Item 12d (Record of Service – Total Prior Inactive Service) – “00/00/00” * Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) – Army Service Ribbon, National Defense Service Medal, and Army Good Conduct Medal (1st Award) * Item 25 (Separation Authority) – “AR 635-200, PARA 14-12B” * Item 26 (Separation Code (SPD)) – “JKA” * Item 27 (Reentry (RE) Code) – “RE-3” * Item 28 (Narrative Reason for Separation) – “MISCONDUCT” v. The applicant offers as evidence five letters of support, dated in 2008, and completed by instructors and supervisors; all describe the applicant as performing well, showing leadership skills, eager to learn. In addition, the applicant provides an extract from his VA medical records, dated in 2020, that reflect diagnoses of adjustment disorder and PTSD. 5. 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. a. During the applicant’s era of service, commanders could initiate separation action, under the provisions of paragraph 14-12b, AR 635-200, against Soldiers who demonstrated a pattern of misconduct, consisting of discreditable involvement with civil or military authorities and conduct that was prejudicial to good order and discipline. Although the regulation stated it was appropriate to issue an under other than honorable conditions discharge, separation authorities could award a general discharge under honorable conditions when merited. b. AR 600-85 (ADAPCP), in effect at the time, mandated the referral for ADAPCP screening of Soldiers charged in alcohol-related driving incidents. (1) Interim Change 3 dated 1 October 1993 (later included in change 2 of the regulation, effective 1 October 1995), stated, “Soldiers who are involved in serious instances of alcohol-related misconduct will be considered for separation. Repetitive instances of being drunk on duty or instances of operating a motor vehicle while drunk are examples of such misconduct.” (2) The applicant provides evidence, in the form of a DA Form 4465-R, dated 26 April 1995, which shows his mandatory referral for ADAPCP screening and enrollment in ADAPCP due to his DWI; the form additionally lists his enrollment facility as “Community Counseling Center.” The regulation required Army installations to establish community counseling centers for the purpose of providing rehabilitative services for alcohol and drug abusers; local medical commands were responsible for quality assurance in all aspects of treatment and rehabilitation services. c. Per AR 635-5 (Separation Documents), in effect at the time, the narrative reason, separation code, and reentry code were tied to the regulatory separation authority. (1) The regulation referred DD Form 214 preparers to AR 635-5-1 (SPD) for the SPD and narrative reason for separation. According to the version of AR 635-5-1, in effect at the time, Soldiers separated per paragraph 14-12b, AR 635-200 received the SPD “JKA” and the narrative reason for separation of “Misconduct.” (2) AR 635-5 provided an SPD/RE Code Cross Reference Table that listed the RE codes associated with a specific SPD. For Soldiers issued the SPD “JKA”, the assigned RE code was “3.” d. Chapter 5 (Separation for Convenience of the Government), Section II (Secretarial Authority), AR 635-200, in effect at the time, stated the separation of enlisted personnel was the prerogative of the Secretary of the Army and was to be executed only by his/her authority. (1) The discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him/her. (2) In cases where the Board changes an applicant's separation authority citation to Secretarial Authority, it is necessary to also revise the narrative reason for separation and its associated separation program designator (SPD). According to AR 635-5-1 (SPD), currently in effect, Soldiers separated based on Secretarial Authority are issued the following narrative reason for separation: "Secretarial Authority"; the SPD was "JFF." e. The ABCMR does not grant requests for upgraded characters of service solely to make someone eligible for Veterans' benefits; however, in reaching its determination, the Board can consider the applicant’s petition, his evidence and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. 6. Counsel asserts the following: a. The Army violated the applicant’s due process rights by failing to provide or advise the applicant of his right to legal counsel during his military sentencing. (1) Sentencing is associated with the results of a court-martial. (2) The evidence of record is void of any documentation showing the applicant was either tried or convicted by a court-martial. b. The Army violated the applicant’s due process rights when it failed to inform the applicant of his right to counsel and/or failed to provide the applicant with counsel for his DWI. As a result, the applicant made “unknowing and unintelligent” decisions after his command gave him a choice between civilian or military punishment for his DWI. “Contrarily, Applicant's military record includes ample evidence that the Army advised Applicant of his right to counsel (or Applicant's waiver of counsel) after his arrest for disorderly conduct and during his involuntary separation proceedings.” (1) The evidence of record, and that provided by the applicant, verifies the applicant’s DWI occurred off-post and within the jurisdiction of the civil authority, and the civil authority adjudicated the applicant’s case. Department of the Army Pamphlet (DA PAM) 27-174 (Jurisdiction), in effect at the time, stated, per a 1969 U.S. Supreme Court ruling (the military could not try a service member for an offense committed off-post and off-duty unless it established a service-connection. (2) The applicant and counsel assert the applicant’s command gave him a choice of whether to resolve his DWI through the military justice system or via local civil authority. Neither the applicant nor his counsel offers documentary evidence to support their claim. (a) AR 15-185 (ABCMR) states the ABCMR decides cases on the evidence of record; it is not an investigative body. Additionally, the ABCMR begins its consideration of each case with the presumption of administrative regularity (i.e., the documents in an applicant’s service records are accepted as true and accurate, barring compelling evidence to the contrary). The applicant bears the burden of proving the existence of an error or injustice by presenting a preponderance of evidence, meaning there is a greater than a 50 percent chance that what an applicant’s claims is true. (b) The UCMJ spells out who decides how violations of the UCMJ are addressed within the U.S. Armed Forces; Article 15 prescribes nonjudicial punishments and Articles 22 through 24 identify what levels of command may convene courts-martial. The UCMJ does not include provisions for an accused service member to select the venue through which UCMJ violations are resolved. (3) The applicant and counsel contend the Army failed to provide the applicant counsel for his civilian DWI charge. (a) According to CFR, Title 32 (National Defense), Subtitle A (Department of Defense), Chapter V (Department of the Army), Part 516.6 (Litigation – Appearance as Counsel), in effect at the time, officers of the Army Judge Advocate General’s Corps were not authorized to advise or defend Soldiers facing trial in civilian court. In cases where the Soldier was pending trial by court-martial, in addition to a civilian legal proceeding, the Soldier could file a request for counsel, through the U.S. Army Trial Defense Service, to The Judge Advocate General, Department of the Army for final approval. (b) The applicant provides a civilian court document indicating the applicant was defended before the civilian court by a civilian lawyer. (4) Counsel points to a rights warning given by the AFPD at Lackland AFB as proof the Army should have offered the applicant counsel for his DWI charge. The evidence of records shows the AFPD gave the applicant a rights warning because the AFPD questioned the applicant about what had occurred when the civilian police cited the applicant for public intoxication. c. Counsel contends the applicant’s “non-judicial punishment included removal from 91-Charlie school.” (1) There are two instances of nonjudicial punishment in the applicant’s service record; the first occurred in 1993 (two years prior to his DWI charge) and the second took place, on 22 March 1995, when the applicant accepted nonjudicial punishment for missing two Command Information Briefings. The punishment imposed for the first NJP action consisted of a $221 forfeiture and 14-days’ extra duty. For the second NJP, the imposing commander’s punishment was10-days’ extra duty. (2) AR 27-10 (Military Justice), in effect at the time, stated, “Nonjudicial punishment is imposed to correct misconduct in violation of the UCMJ. Such conduct may result from intentional disregard of or failure to comply with prescribed standards of military conduct. Nonpunitive measures…are primarily tools for teaching proper standards of conduct and performance and do not constitute punishment. Included among nonpunitive measures are: denial of pass or other privileges, counseling, administrative reduction in grade, administrative reprimands and admonitions, extra training (AR 600-20 (Army Command Policy)), bar to reenlistment, and MOS reclassification.” (3) AR 600-8-2 (Suspension of Favorable Personnel Actions (Flags)), in effect at the time, required the suspension of all favorable personnel actions upon the initiation of formal or informal investigations by military or civilian authorities. School attendance is a favorable personnel action. d. Counsel argues the Army failed to properly counsel and rehabilitate the applicant; in support of this claim, counsel cites the version of AR 635-200 that took effect in 2016. (1) Paragraph 1-18 (Counseling and Rehabilitative Requirements), in effect at the time, stated commanders were to ensure Soldiers received adequate counseling and rehabilitative measures before the initiation of separation action. Specifically, when a Soldier’s conduct or performance approached the point where separation action might be considered, a responsible leader had to counsel the Soldier at least once before beginning separation processing; additional formal counseling was discretionary. (2) The commander’s separation recommendation stated that, on 4 occasions, the applicant’s leadership had given the applicant written counseling statements. The evidence of record shows, on 13 February 1995, Sergeant First Class (SFC) used a DA Form 4856 (General Counseling Form) to address the applicant’s arrest for DWI; the counseling statement included the following statement, “The Soldier was told that if this type of behavior continues, action may be initiated under the UCMJ and/or to administratively separate the Soldier prior to normal ETS UP (under the provisions of) AR 635-200.” (3) The commander’s separation recommendation additionally noted, “[Applicant] was rehab transferred to another section, however, his conduct has continue(d) to be unacceptable.” 7. 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. 8. MEDICAL REVIEW: ? a. Applicant is applying to the ABCMR requesting a discharge upgrade asserting PTSD and depression. The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149 and supporting documents, his ABCMR Record of Proceedings (ROP), his separation military documentation, and the VA electronic medical record (JLV). b. Due to the period of service, no active duty electronic medical records (AHLTA) were available for review. Hard copy medical documentation from the time of service reveals diagnoses of Alcohol Dependence and Occupational Problem. c. Review of VA electronic medical record (JLV) indicates that the applicant is not service connected. Post service, the VA medical record has diagnosed applicant with an Adjustment Disorder. d. After review of all available information, there is insufficient evidence of any mitigating BH conditions. Applicant was diagnosed in service with Alcohol Dependence and Occupational Problem, neither of which are mitigating BH conditions. And applicant is not service connected for any BH conditions. KURTA FACTORS Did the applicant have a condition or experience that may excuse or mitigate the discharge? No. There is insufficient evidence of any mitigating BH conditions. Applicant was diagnosed in service with Alcohol Dependence and Occupational Problem, neither of which are mitigating BH conditions. And applicant is not service connected for any BH conditions. Did the condition exist or experience occur during military service? N/A. Does the condition or experience actually excuse or mitigate the discharge? 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 applicants request, supporting documents, evidence in the records, counsel’s petition, a medical advisory opinion, 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. The Board considered the medical records and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The Board noted there is insufficient evidence of any mitigating BH conditions at the time of his active service to support a clemency determination. Based on a preponderance of evidence, the Board determined that the narrative reason for separation and character of service the applicant received upon separation was not in error or unjust. 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, USC, Section 1552(b), states 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. Title 10, United State Code, section 1556 (Ex Parte Communications Prohibited) provides the Secretary of the Army shall ensure that an applicant seeking corrective action by 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. AR 635-200, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. a. Paragraph 1-18 (Counseling and Rehabilitative Requirements) stated commanders were to ensure Soldiers received adequate counseling and rehabilitative measures before the initiation of separation action. Specifically, when a Soldier’s conduct or performance approached the point where separation action might be considered, a responsible leader had to counsel the Soldier at least once before beginning separation processing; additional formal counseling was discretionary. b. Paragraph 3-7a stated an honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. Separation authorities could furnish an honorable discharge when a Soldier's subsequent honest and faithful service over a greater period served to outweigh any disqualifying entries. It was the pattern of behavior, and not the isolated instance, that commanders should consider as the governing factor. c. Chapter 5 (Separation for Convenience of the Government), Section II (Secretarial Authority), AR 635-200, in effect at the time, stated the separation of enlisted personnel was the prerogative of the Secretary of the Army and was to be executed only by his/her authority. (1) The discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him/her. (2) In cases where the Board changes an applicant's separation authority citation to Secretarial Authority, it is necessary to also revise the narrative reason for separation and its associated separation program designator (SPD). According to AR 635-5-1 (SPD), currently in effect, Soldiers separated based on Secretarial Authority are issued the following narrative reason for separation: "Secretarial Authority"; the SPD was "JFF." d. Paragraph 14-12b stated members were subject to separation under this provision when they showed a pattern of misconduct involving acts of discreditable involvement with civil or military authorities, and/or displayed conduct that was prejudicial to good order and discipline. 4. AR 600-85 (ADAPCP), in effect at the time, mandated the referral for ADAPCP screening of Soldiers charged in alcohol-related driving incidents. Interim Change 1 dated 1 October 1991 (later included in change 2 of the regulation, effective 1 October 1995), stated, “Soldiers who are involved in serious instances of alcohol-related misconduct will be considered for separation. Repetitive instances of being drunk on duty or instances of operating a motor vehicle while drunk are examples of such misconduct.” 5. AR 635-5 (Separation Documents), in effect at the time, the narrative reason, separation code, and reentry code are tied to the regulatory separation authority. a. The regulation referred DD Form 214 preparers to AR 635-5-1 (SPD) for the SPD and narrative reason for separation. According to the version of AR 635-5-1, in effect at the time, Soldiers separated per paragraph 14-12b, AR 635-200 received the SPD “JKA” and the narrative reason for separation of “Misconduct.” b. AR 635-5 provided an SPD/RE Code Cross Reference Table that listed the RE codes associated with a specific SPD. For Soldiers issued the SPD “JKA”, the assigned RE code was “3.” 6. AR 27-10 (Military Justice), in effect at the time, stated, “Nonjudicial punishment is imposed to correct misconduct in violation of the UCMJ. Such conduct may result from intentional disregard of or failure to comply with prescribed standards of military conduct. Nonpunitive measures…are primarily tools for teaching proper standards of conduct and performance and do not constitute punishment. Included among nonpunitive measures are: denial of pass or other privileges, counseling, administrative reduction in grade, administrative reprimands and admonitions, extra training (AR 600-20), bar to reenlistment, and MOS reclassification.” 7. DA PAM 27-174 (Jurisdiction), in effect at the time, stated, per a 1969 U.S. Supreme Court ruling (O’Callahan v. Parker), the military could not try a service member for an offense committed off-post and off-duty unless it established a service-connection. 8. CFR, Title 32 (National Defense), Subtitle A (Department of Defense), Chapter V (Department of the Army), Part 516.6 (Litigation – Appearance as Counsel), in effect at the time, officers of the Army Judge Advocate General’s Corps were not authorized to advise or defend Soldiers facing trial in civilian court. In cases where the Soldier was pending trial by court-martial, in addition to a civilian legal proceeding, the Soldier could file a request for counsel, through the U.S. Army Trial Defense Service, to The Judge Advocate General, Department of the Army for final approval. 9. AR 15-185 (ABCMR) states the ABCMR decides cases on the evidence of record; it is not an investigative body. Additionally, the ABCMR begins its consideration of each case with the presumption of administrative regularity (i.e., the documents in an applicant’s service records are accepted as true and accurate, barring compelling evidence to the contrary). The applicant bears the burden of proving the existence of an error or injustice by presenting a preponderance of evidence, meaning there is a greater than a 50 percent chance that what an applicant’s claims is true. 10. 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. 11. 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) AR20220001908 1 ABCMR Record of Proceedings AR20220001908 1