IN THE CASE OF: BOARD DATE: 22 August 2022 DOCKET NUMBER: AR20220002126 APPLICANT’S REQUEST: * review and correction of the currently documented discharge of under other than honorable conditions * personal appearance before the Board, if deemed necessary APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * 2 x DD Forms 149 (Application for Correction of Military Record) * Letter from Department of Veteran Affairs (VA) * 2 x Requests Pertaining to Military Records * 2 x Copies of Envelopes * Copy of Treatment Records and Medical Documents * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Dental Records FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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. 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. 3. The applicant states, in effect, he believes his discharge is in error due to a recent mental health diagnosis. He believes the mental health issue was undiagnosed and untreated, while he was in service. The untreated mental health diagnosis compounded by a sever head injury sustained three months prior to his discharge had a negative impact, during his time of service and continues to interfere with his day-to-day functioning. He requested his records in October 2019 due to his diagnosis and treatment for psychotic disorder, anxiety, and depression. He obtained his medical records on 30 November 2020. He asks for consideration based on his records and evidence. If the Board requires additional information or if it was deemed necessary, he would appear before the Board. 4. The applicant provides the following documents, not contained in his service record, for the Board's consideration: a. A letter from the VA, dated 30 September 2020, which states in effect it was their response to the applicant's Privacy Act request, dated 18 November 2019. The VA provided the applicant with his military separation documents and service treatment records. b. Two Requests Pertaining to Military Records, wherein the applicant requested his records from the VA. c. Copies of the applicant's envelopes addressed to the VA. d. Medical records, which show the applicant was seen for: * immunizations, a copy of his immunization record is available for the Board's review * lab results * Report of Mental Status Evaluation, his mental status was within normal limits, he did not suffer from a psychiatric disease or defect, he was qualified for separation under Chapter 14-12c * Report of Medical Assessment, wherein the applicant indicates he had no medical issues * Report of Medical History showing he was in good health and had not medical issues * Report of Medical Examination showing he was qualified for separation * shoulder pain * knee pain * cold symptoms * hip pain * cyst in left arm pit * sexually transmitted diseases * glasses * initial Report of Medical Examination showing he was qualified for enlistment * initial Report of Medical History showing he was in fair health (smoking) * dental records * jaw swelling * CT results showing small acute parenchymal contusion and hematoma of the left temporoparietal lobe region * subdural hematoma and intraparenchymal hemorrhage * being hit in the head * hospital admittance on 1 July 2019 for insomnia and command auditory hallucinations released on 4 July 2019 principle diagnosis psychotic affective disorder * list of medications 5. On 25 September 2000, the applicant enlisted in the US Army Reserve (USAR) delayed entry program (DEP) for a period of 8 years. On 17 October 2000, he was discharged from the USAR DEP and entered active duty for a period of 4 years. 6. The applicant's DA Form 2-1 (Personnel Qualification Record) does not indicate when he entered basic training; however, it shows he entered advanced individual training on 29 January 2001. 7. On 4 October 2001, the applicant's duty status was changed from present for duty (PDY) to absent without leave (AWOL). On the same day, a Report to Suspend Favorable Personnel Actions was completed on the applicant. 8. On 4 October 2001, a Commander's Report of Inquiry/Unauthorized Absence was completed and shows the applicant's next of kin and their addresses. 9. On 3 November 2001, the applicant's duty status was changed from AWOL to dropped from rolls (DFR). On the same day, a Deserter/Absentee Wanted by the Armed Forces form was completed. 10. On 3 June 2002, a Report of Return of Absentee was completed showing the applicant was apprehended by civil authorities. On 6 June 2002, his duty status was changed from DFR to PDY. 11. On 6 June 2002, the applicant received a counseling form for being AWOL and desertion. The applicant agreed with the counseling and signed the form. 12. On 19 July 2002, the applicant accepted nonjudicial punishment (NJP) for being AWOL from on or about 4 October 2001 to on or about 6 June 2002. His punishment included forfeiture of $552 per month for two months suspended and extra duty and restriction for 45 days. He did not appeal his punishment. On 22 July 2002, the suspended portion of the punishment was vacated because the applicant was found drunk while on duty on or about 2 August 2002. 13. On 1 August 2002, a Report to Suspend Favorable Personnel Action was completed to remove the flag on the applicant for final action. 14. On 27 August 2002, the applicant's commander advised him that he was initiating separation action against the applicant, under paragraph 14-12c (Commission of a Serious Offense), Army Regulation 635-200 (Active Duty Enlisted Administrative Separations). The commander indicated the basis for this action was the applicant went AWOL on 4 October 2001 and was DFRd on 3 November 2001. On 6 June 2002, he was apprehended and returned to military control. His commander was recommending an under other than honorable conditions discharge. On the same day, the applicant acknowledged the receipt of notification. 15. On 27 August 2002, after consulting with counsel, the applicant acknowledged counsel had advised him of the basis for the separation action, the rights available to him, and the effect of waiving those rights. He waived his right for consideration of his case by and administrative separation board, personal appearance before an administrative separation board, statements in his behalf were not submitted, and he waived his right to consulting counsel. A defense counsel completed a memorandum for record on 27 August 2002, stating he advised the applicant of his right to be advised by consulting counsel and the applicant chose to waive his rights. 16. The applicant's chain of command recommended approval of the applicant's separation with an under other than honorable conditions discharge. 17. On 17 September 2002, the appropriate approval authority directed the applicant's discharge from the Army with an under other than honorable conditions discharge, he be reduced to the lowest enlisted grade, and waived the rehabilitation requirement. 18. On 4 October 2002, the applicant was discharged accordingly. His DD Form 214 shows he had completed 1 year, 3 months, and 13 days of service. He had not completed his first full term of service. He had lost time from on or about 4 October 2001 through 2 November 2001 and 3 November 2001 to 5 June 2002. He was awarded or authorized the National Defense Service Medal and Army Service Ribbon. 19. The applicant is requesting an upgraded discharge based on the fact that he believed he had undiagnosed and untreated mental health issues at the time of his service. He also had a head injury, during his time of service. a. The applicant provides documentation showing, while on active duty, he was seen for a head injury from an alleged assailant. Since his discharge, he has been diagnosed with mental health issues. b. The applicant was determined to be AWOL from on or about 4 October 2001 to on or about 5 June 2002. He accepted NJP for this period of AWOL with a suspended punishment. The suspended punishment was vacated due to the applicant being found drunk on duty. c. During the applicant's era of service, commanders could initiate separation action under paragraph 14-12c(2), Army Regulation 635-200 when Soldiers had committed a serious offense for which the UCMJ's maximum punishments authorized a punitive discharge. The regulation deemed the abuse of illegal drugs a serious offense. d Army Regulation 15-185 (ABCMR) states an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. e. In reaching its determination, the Board can consider the applicant’s petition, her arguments and assertions, and her service record in accordance with the published equity, injustice, or clemency guidance. 20. 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. 21. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting discharge upgrade contending that the misconduct leading to his Under Other Than Honorable Conditions discharge was due to mental health diagnoses he developed and a severe head injury he experienced during his time in service. b. The Agency psychologist was asked by the ABCMR to review this request. Documentation reviewed includes the applicant’s completed DD149 and supporting documentation and his military separation packet. The VA electronic medical record, Joint Legacy Viewer (JLV) and civilian medical documentation were also reviewed. The military electronic medical record (AHLTA) was not reviewed as it was not in use during his time in service. No hard copy military medical records were provided for review. c. Review of the applicant’s military documentation indicates that he enlisted in the Army Reserve (Delayed Entry Program) on 25 Sep 2000 and subsequently transferred to the Regular Army on 17 Oct 2000. During his time in service, his awards included the National Defense Service Medal and Army Service Ribbon. His job position was HS Track Vehicle Mechanic. d. An Article 15 charged him with being absent without leave (AWOL) from 04 Oct 2001 - 06 Jun 2002 while assigned to C Company, 15th FSB, Fort Hood, TX. A Report of Mental Status Evaluation (22 Jul 2022) indicated normal behavior and thought content, as well as unremarkable mood/affect. The report further noted, “individual does not suffer from a psychiatric disease or defect that would cause significant defects to judgment or reliability.” An Inpatient Treatment note, Darnall ACH, Fort Hood (09 Aug 2002) indicated, “alleged assault, patient was hit in the head with unk object…IHOP Restaurant” on 29 Jun 2002. A Separation Under AR 635-200, Chapter 14, Paragraph 14-12c was initiated for “Commission of a Serious Offense” due to his extended AWOL period. He received an Under Other Than Honorable Conditions discharge on 04 Oct 2002 with DD-214 Narrative Reason for Separation, Misconduct. e. The supporting documentation included an August Health, Psychiatric Transition of Care note (94 Jul 2019) indicating, “patient hesitant to complete interview process. He is somewhat paranoid as his eyes are darting around admission room. Info here gathered from ER/resource reports. Hearing ‘they’ were going to kill him and his family and he has SI to protect his family. Started again x 1 month ago.” He was diagnosed with “Psychotic Affective Disorder.” and prescribed with Risperidone. f. The VA electronic medical record, Joint Legacy Viewer (JLV) did not indicate any service-connected disability(s). There was no data available for any medical or behavioral health notes. There was also no data available on the problem list. Based on the available information and in accordance with the Liberal Consideration guidance, it is the opinion of the Agency psychologist there is insufficient evidence to support the presence of any behavioral health conditions which led to his Under Other Than Honorable Conditions discharge. Very limited medical records supporting the presence of significant psychological symptoms or diagnoses during his time in service were provided for review. Even so, the Agency psychologist will gladly revisit the applicant’s request should he, in the future, submit medical documentation of any behavioral health condition(s) related to his military service. g. Regarding the Kurta questions, the applicant did not have a condition that may excuse or mitigate the discharge. There were not any identified behavioral health conditions which existed and/or traumatic events, other than a physical assault (lacking documented behavioral health symptoms) which occurred during military service. Finally, there were not any identified conditions which actually excuse or mitigate the discharge. An upgrade is therefore not recommended at this time. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined relief was not warranted. Based upon the short term of honorable service completed prior to the AWOL offense leading to the applicant’s separation and the findings and recommendation of the medical advisor, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s characterization of service. 2. The applicant's request for a personal appearance was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance before the Board is not necessary to serve the interest of equity and justice in this case. 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), 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 Army Board for Correction of Military Records (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. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. 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 in cases where the Soldier's subsequent honest and faithful service, completed over a greater period, outweighed his/her disqualifying entries. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. Commanders could initiate separation action when they determined a Soldier had committed serious misconduct, and could clearly establish rehabilitation was impracticable or unlikely to succeed. Paragraph 14-12c (Commission of a Serious Offense) applied to Soldiers who committed a serious military or civilian offense, for which the UCMJ authorized a punitive discharge for the same or similar offense. 3. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR), prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. It states, the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 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) AR20220002126 1 ARMY BOARD FOR THE CORRECTIONS OF MILITARY RECORDS RECORD OF PROCEEDINGS 1