IN THE CASE OF: BOARD DATE: 14 October 2022 DOCKET NUMBER: AR20220002780 APPLICANT REQUESTS: in effect, her characterization of service be upgraded from under honorable conditions (general) to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * Department of Veterans Affair (VA) Summary of Benefits FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect, her depression and anxiety caused the alcohol and drug abuse that led to her discharge. 3. The applicant enlisted in the Regular Army on 3 November 2009. She was assigned to 101st Chemical Company, 192nd Ordnance Battalion, Fort Bragg, NC. She was advanced to specialist/E-4 in November 2011. 4. The applicant's immediate commander notified the applicant on 24 July 2012 that he had initiated actions to separate her from service under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, by reason of misconduct – abuse of illegal drugs. Her commander cited the applicant's positive test for the drug "Spice" on 4 January 2012, and her arrest on 5 February 2012 for driving under the influence as the reasons for this action. She acknowledged receipt on the same date. 5. The applicant was advised on 31 July 2012 of the basis for the contemplated actions to separate her and of the rights available to her. She indicated that she had consulted with counsel and would submit a statement in her own behalf. She failed to submit in matters in her defense within the allotted time. 6. On 9 August 2012, the applicant's immediate commander formally recommended the applicant's separation from service, under the provisions of AR 635-200, Chapter 14, by reason of misconduct. 7. The separation authority approved the recommended discharge and directed the applicant's service be characterized as under honorable conditions, general. 8. The applicant was discharged on 19 September 2012. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms she was discharged under the provisions of AR 635-200, paragraph 14-12c, by reason of misconduct (drug abuse). Her service was characterized as under honorable conditions (general). She completed 2 years, 10 months, and 17 days of active service. She was awarded or authorized: National Defense Service Medal, Global War on Terrorism Service Medal, and Army Service Ribbon 9. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of her discharge. The ADRB denied her request on 13 October 2017, after determining she was properly and equitably discharged. 10. The applicant's record is void of a separation physical or mental status evaluation. However, she provides her VA summary of benefits letter, dated 1 November 2021, which indicates she has one or more service-connected disabilities which have a combined disability rating of 100 percent. Her specific medical conditions are not listed. 11. The Board should consider the applicant's statement and overall military service in accordance with the published equity, injustice, or clemency determination guidance. 12. 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. 13. MEDICAL REVIEW: The applicant is applying to the ABCMR requesting an upgrade of her characterization of service from under honorable conditions, general, to honorable. She contends her misconduct was due to mood disorder. a. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted into the Regular Army on 2 November 2009; 2) She tested positive for illegal drug use (4 January 2012) and was cited with DUI of alcohol 5 February 2012; 3) She was discharged on 19 September 2012 under provisions of AR 635-200, Chapters 14-12c, by reason of misconduct (drug abuse). b. The Army electronic medical record (AHLTA), VA electronic medical record (JLV), and the ROP were reviewed. A review of AHLTA shows the applicant was enrolled into ASAP in January 2012 to mid-July 2012. AHLTA records are void of any other BH diagnosis or treatment. A review of JLV shows that applicant is 90 percent service connected with a 30 percent service-connected diagnosis of Other Recurring Depressive Disorder with Anxious Mood; effective date 7 February 2019. Records show she was treated at the VA 29 November 2012 until 25 April 2015, for anxiety, depression, insomnia, and alcohol abuse; the VA, for Depression in 2018; and a C&P dated 14 October 2020 shows she continued receiving treatment at the VA with a diagnosis of Other Recurring Depressive Disorder with Anxious Mood. The applicant contends she first began drinking alcohol to address issues with insomnia, after medications proved ineffective. She later became depressed and anxious and continued self-medicating with alcohol, as medications to treat mood-related symptoms proved ineffective. She reportedly tried spice on a couple of occasion, presumably to feel better. c. After reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, it is the opinion of the Agency Behavioral Health advisor that the applicant’s misconduct is mitigated by her contended mood disorder. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant has a 30 percent service- connected diagnosis of Other Recurring Depressive Disorder with Anxious Mood (2) Did the condition exist or experience occur during military service? Yes. The symptoms onset reportedly occurred during her active-duty service. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. There is a clear nexus between depression/anxiety and self-medicating with alcohol and/or other substances of abuse. 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 request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was discharged from active duty due to Misconduct – Commission of a Serious Offense. The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. a. A majority of the Board agreed that although the reviewing medical official found applicant’s misconduct is mitigated by her contended mood disorder, the facts remains that the applicant did abuse illegal drugs, did not complete term of service and still received a general discharge. Upgrading her discharge would be inequitable to the thousands of Soldiers who served honorably without abusing illegal drugs. Based on a preponderance of evidence, a majority of the Board determined that the character of service the applicant received upon separation was not in error or unjust. b. The member in the minority concurred with the medical advisory opinion finding sufficient evidence of in-service mitigating factors to overcome the misconduct. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 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 was normally considered appropriate. However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record. 3. Title 38, USC, section 1110 (General - Basic Entitlement): For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 4. Title 38, USC, section 1131 (Peacetime Disability Compensation - Basic Entitlement): For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 6. AR 15-185 (ABCMR), 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. 7. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220002780 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1