IN THE CASE OF: BOARD DATE: 20 October 2022 DOCKET NUMBER: AR20220005382 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * progress notes and Physician Outpatient Clinical Record Form 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. The applicant states, in effect, he was told while out-processing that an upgrade of his discharge was automatic. He is still very much more than able to serve and was always regretful of the harsh decisions he chose to make. Now, with the advent of the Space Force and Reserve opportunities, he would like his records updated to reflect how he has matured. 3. The applicant provides: a. His DD Form 214, which shows he was discharged on 24 January 2007, under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administration Separations), chapter 10, In Lieu of Trial by Court Martial, with a character of service of under other than honorable conditions. He served 7 months and 26 days of net active service this period. In addition, he had lost time from 26 October 2006 to 12 December 2006. b. progress notes and Physician Outpatient Clinical Record Form (12 pages), dated between 22 December 2009 and 23 August 2012, which notes a diagnosis of bipolar disorder. 4. A review of the applicant's service record shows: a. He enlisted in the Army on 12 April 2000. b. His duty status changed as follows: * from present for duty (PDY) to absent without leave (AWOL), effective 26 October 2006 * from AWOL to Dropped from Rolls (DFR), effective 25 November 2006 * from DFR to PDY, effective 13 December 2006 c. DD Form 458 (Charge Sheet), dated 18 December 2006, court-martial charges were preferred against the applicant for one specification of being AWOL from 26 October until on or about 13 December 2006. d. On 18 December 2006, the applicant consulted with legal counsel. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. Subsequent to receiving legal counsel, he voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, in lieu of trial by court-martial. In his request for discharge, he acknowledged his understanding that: * by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of an undesirable discharge * he acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he was advised he could submit any statements he desired in his own behalf; he did not submit any statements e. The separation authority approved the applicant's request for discharge on 8 January 2007, under the provisions of AR 635-200, chapter 10, in lieu of trial by court- martial, and directed that he be reduced to the lowest enlisted grade and discharged under other than honorable conditions. He completed 7 months and 26 days of active service and he had lost time from 26 October 2006 to 12 December 2006. f. As previously stated in paragraph 3a, the applicant was discharged on 24 January 2007, with a character of service of under other than honorable conditions. 5. By regulation, a member who has committed an offense for which the authorized punishment includes a punitive discharge may submit a request for discharge in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 6. The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant requests a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable. 7. The Board should consider the applicant's submissions in accordance with the published equity, injustice, or clemency determination guidance. 8. MEDICAL REVIEW: Applicant is applying to the ABCMR requesting an upgrade of his under other than honorable conditions discharge. As the applicant provided the ABCMR with medical documentation, dated 22 December 2009 to 23 August 2012, indicating he was diagnosed with Bipolar Disorder, a medical review was requested by the ABCMR. a. Documentation reviewed by the medical advisor includes the application and accompanying documentation; the military electronic medical record, AHLTA; and the VA electronic medical record, JLV. b. Pertinent to this advisory are the following: 1) The applicant entered the Army on 12 April 2000; 2) While on active duty, he went AWOL from 26 October 2006 until 13 December 2006; 3) He was discharged on 24 January 2007 in lieu of trial by court- martial. c. Applicant-provided medical documentation indicates the applicant was psychiatrically evaluated at the on 12 January 2010, at which time he was diagnosed with Bipolar I Disorder, Most Recent Episode Mixed, Severe without Psychotic Features; Alcohol Abuse; Cannabis Abuse. d. Review of AHLTA indicates that the applicant was diagnosed with Depression on 3 October 2006. At this time, he reported symptoms of depression, emotional lability, insomnia, loss of pleasure, impulsivity, and difficulty with concentration. He reported a history of taking antidepressants in the past. Family history was also positive for depression in his mother and grandmother. e. The applicant was also seen and evaluated for migraine headaches while on active duty. During his 25 October 2006 medical appointment, he reported he had talked with the chaplain about leaving due to a family emergency–his father had had surgery and could not get help for their ranch. The applicant indicated he would speak to his drill sergeant about this. The record indicates he went AWOL the next day. f. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that the applicant has a behavioral health condition, depression, which partially mitigates his misconduct. Military medical records indicate he was diagnosed with Depression on 3 October 2006 with impulsivity indicated as one of his symptoms. On 25 October 2006, he reported to his physician that his father was ill and needed help on the ranch. The applicant then went AWOL the next day. It is the writer’s opinion that the applicant’s diagnosis of depression more likely than not contributed to his impulsive decision to go AWOL and, as such, partially mitigates his misconduct. g. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? (a) Yes, the applicant was diagnosed with Depression, a potentially mitigating BH condition, while on active duty. (2) Did the condition exist or experience occur during military service? (a) Yes, the applicant was diagnosed with Depression while on active duty. (3) Does the condition or experience actually excuse or mitigate the discharge? (a) Partially. It is the opinion of the Agency BH Advisor that the applicant’s diagnosis of Depression more likely than not contributed to his impulsive decision to go AWOL and, as such, partially mitigates his misconduct. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense 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 review and conclusions of the Army Review Boards Agency Behavioral Health Advisor. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board found insufficient evidence of in- service mitigating factors and noted the Behavioral Health Advisor concluded the applicant’s behavioral health condition on partially mitigates his misconduct. Based on a preponderance of evidence, the Board determined the 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), 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 (Active Duty Enlisted Administration Separations), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (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. 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. 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) AR20220005382 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1