IN THE CASE OF: BOARD DATE: 4 January 2023 DOCKET NUMBER: AR20220005691 APPLICANT REQUESTS: Upgrade of her under honorable conditions (general) discharge to honorable. She further requests personal appearance before the board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored Letter * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. In a hand-written letter, the applicant states she never given legal counsel before discharge. She was never afforded the opportunity to contest urinalysis test, nor be retested. She apologizes to the Board for submitting this late application for consideration. She was not aware of anything that she could do to try and rectify what had been done already. She realizes that using an illegal substance is a cause for discharge; however, she was never given due process. This letter is provided in its entirety for the Board’s review within the supporting documents. 3. On her DD Form 149, the applicant notes that other mental health is related to her request, as a contributing and mitigating factor in the circumstances that resulted in her separation. 4. The applicant enlisted in the Regular Army on 22 May 1989. Upon completion of training, she was awarded military occupational specialty 76J (Medical Supply Specialist). She reenlisted to remain in the Regular Army on 19 April 1983 and 19 February 1987. 5. On 12 May 1989, the applicant accepted non-judicial punishment under Article 15 of the Uniform Code of Military Justice, for wrongfully using cocaine, from on or about 14 March 1989 to on or about 14 April 1989. Her punishment included reduction to the grade of E-4, forfeiture of $541 pay per month for one month, and extra duty for 30 days. 6. The applicant's immediate commander notified her on 26 June 1989, that he was initiating actions to separate her under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14-12c (Commission of a Serious Offense), citing her positive test for cocaine. 7. On 26 June 1989, the applicant consulted with counsel and was advised of the basis for the contemplated separation action, the possible effects of the discharge, and the rights available to her. She indicated she understood she could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to her and she could be ineligible for many or all benefits as a veteran under Federal and State laws as a result. She declined to submit a statement in her own behalf. 8. On 26 June 1989, the applicant's immediate commander formally recommended her separation under the provisions of AR 635-200, Chapter 14-12c. 9. On or about 27 June 1989, the applicant underwent a mental status evaluation. She was psychiatrically cleared to understand and participate in board proceedings. 10. 29 June 1989, consistent with the chain of command's recommendation the separation authority approved the separation action with the issuance of a General Discharge Certificate. 11. The applicant was discharged on 7 July 1989. Her DD Form 214 confirms she was discharged under the provisions of AR 635-200, Chapter 14-12c, for misconduct – commission of a serious offense (Separation Code JKQ and Reentry Code 3). Her service was characterized as under honorable conditions (general). She completed 10 years, 1 month, and 16 days of net active service this period. Her DD Form 214 does not show her continuous honorable active service period information that is required for members who honorably served their first term of enlistment. 12. 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. 13. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of her discharge under honorable conditions (general). b. 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) Applicant indicates she was never given legal counsel before discharge and was never afforded the opportunity to challenge urinalysis results nor be retested. In essence she asserts lack of due process. (2) ROP indicates her DD Form 149 notes that “other mental health” related to her request as a mitigating and contributory condition. (3) On 12 May 1989 she accepted NJP for wrongfully using cocaine from on about 14 March 1989 to on/about 14 April 1989. (4) On 26 June 1989, the applicant consulted with counsel and was advised of the basis for contemplated separation action and associated implications. (5) On or about 27 June 1989 she underwent a mental status evaluation and was psychiatrically cleared to understand/participate in the Board proceedings. (6) She was discharged on 7 July 1989 under AR 635-200 Chapter 14-12c for misconduct/commission of a serious offense. c. The military electronic medical record, AHLTA, was not reviewed as it was not in use as a EMR at the time of her military service. d. A review of VA records via JLV indicates no service-connected disabilities. There were no Psychiatric C&P records noted in JLV. VA records date back to at least 2013, with a 25 July 2013 social work consult indicating a “history of chronic schizophrenia” and “requires constant meds monitoring.” Mental Health Consult dated 23 August 2013 references involuntary psychiatric commitment for disorganized behavior and symptoms of psychosis in 2011; symptoms associated with hospitalization included isolated behavior, locking self in room, and auditory hallucinations “telling her to do things.” The evaluating psychiatrist notes that “prior to this she does not recall having past mental health issues” but documented a family history of psychosis (younger brother institutionalized). Psychiatry Note of 13 February 2014 references applicant’s sister as her caregiver and a diagnosis of psychotic disorder not otherwise specified. Psychiatry Note of 17 April 2015 (among others) references history of psychosis not otherwise specified and crack (cocaine) abuse in remission. She has been on multiple antipsychotic medications over time to include haloperidol and quetiapine. She has remained in consistent mental health care through the VA to include medication management and peer support, and she appears to have generally been stable over the course of the noted encounters. e. Personal statement/continuation page of DD Form 149 reviewed. There is no clear assertion of a mental health condition, but BH advisor will treat as an implied assertion of other mental health condition associated with her request. She does claim that she was never offered drug counseling. f. Memorandum dated 26 June 1989 (Recommendation for Separation) indicates “SPC was referred to ADAPCP immediately after she was notified of her positive urinalysis. At this time, she denied use. ADAPCP has a standing policy that those soldiers that deny a problem are poor candidates for rehabilitation and as such are not enrolled.” g. Summary of MOS/Medical Retention Board Proceedings (3 June 1988) reviewed; report cites that her “permanent medical condition” does not prevent her from performing the full range of tasks within her PMOS. The memo does not specify the diagnosis/condition. h. DA 3822-R Report of Mental Status Evaluation (Chapter MSE) dated 27 June (1989?) was unremarkable and applicant was cleared for separation. i. No additional medical or psychiatric records were included in her application or available for review. A search of HAIMS did not return any patients matching the search criteria. 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 asserts a mental health condition associated with the circumstances of her discharge. 2. Did the condition exist or experience occur during military service? Yes, per the applicant’s assertion. 3. Does the condition or experience actually excuse or mitigate the discharge? Partial. The applicant asserts, or at least implies, a mental health condition associated with the circumstances of her discharge. Under liberal consideration, this assertion alone is worthy of consideration by the Board. However, it is the BH advisor’s opinion that she has not established the presence of such a condition, nor is there evidence in the available records of such a condition, other than perhaps a substance use disorder. However, a stand-alone substance use disorder would not be considered a mitigating factor for a positive urinalysis (cocaine in the applicant’s case). Will defer to the Board to comment or adjudicate any potential due process issues with her separation. A review of applicant’s history suggests a history of psychosis, but there is no available evidence to suggest such symptoms were present at the time of her service and discharge. However, given the nature of the offense, the period of time since her discharge, and her ongoing psychiatric issues, the Board may wish to consider upgrade of discharge under clemency for this applicant. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of her characterization of service. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding that she has not established the presence of such a condition, nor is there evidence in the available records of such a condition, other than perhaps a substance use disorder. However, a stand-alone substance use disorder would not be considered a mitigating factor for a positive urinalysis (cocaine in the applicant’s case). The Board found insufficient evidence of in-service mitigating factors to overcome the misconduct. The Board noted, the applicant provided insufficient evidence of post-service honorable conduct that might have mitigated the discharge characterization. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. Therefore, relief was denied. 2. The applicant’s request for a personal appearance hearing 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 hearing is not necessary to serve the interest of equity and justice in this case. 3. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. 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: Except for the correction addressed in Administrative Note(s) below, the Board found the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ADMINISTRATIVE NOTE: The applicant’s record shows she completed his first term and reenlisted. Please amend block 18 of her DD Form 214 for the period ending 7 July 1989 by adding "Continuous honorable active service from 19790522 until 19870218." REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Section 1556 of Title 10, USC, 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. 3. Army Regulation 635-8 (Separation Processing and Documents) provides: for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable, enter Continuous Honorable Active Service From" (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment). Then, enter the specific periods of reenlistment as prescribed above. 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. 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 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. It states that action will be initiated to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or unlikely to succeed. Paragraph 14-12c (Commission of a Serious Offense) applied to commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense. First time offenders below the grade of sergeant, and with less than 3 years of total military service, may be processed for separation as appropriate. 5. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 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. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 6. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service BCM/NRs, on 3 September 2014, 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. 7. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, traumatic brain injury (TBI), sexual assault, or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on 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. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 8. 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) AR20220005691 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1