IN THE CASE OF: BOARD DATE: 24 January 2023 DOCKET NUMBER: AR20220005986 APPLICANT REQUESTS: In effect, his uncharacterized separation from the Army National Guard (ARNG) be upgraded to honorable, and to appear before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) * Health Services letter (two) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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 that while in the ARNG, he did not know he had depression. It was a mistake that he shoplifted while he was serving in the ARNG. At the time of the incident, it was a cry for help. Since being diagnosed with depression he has been seeing a therapist and his primary doctor continues to work with him to find the best medication to help control his depression and anxiety. Since learning of his diagnosis, he has been able to his control impulses and has not been in any trouble with the police since the incident in. 3. On the applicant's application, he indicates mental health issues as a contributing and mitigating factor in the circumstances that resulted in his separation. 4. The authority granted by Title 10, U.S. Code, Section 1552 (Correction of Military or Naval Records) is not unlimited. The ABCMR has the authority to correct only Army records. The Board has no authority to correct records created by the Department of Defense, other branches of the Services, Department of Veterans Affairs, or any other governmental agency. In the case of ARNG discharges (NGB Form 22), they are State not Federal actions and primarily under the total control of the State Adjutant General. The ABCMR may only recommend possible actions. 5. The applicant enlisted in the Georgia ARNG on 21 September 2004, for 8 years. The highest grade he held was E-3. 6. The available record is void of any indication that the applicant attended his initial active duty for training or was awarded a military occupational specialty. The record is also void of any separation processing documents. 7. The applicant’s NGB Form 22 shows he was discharged on 4 December 2006, under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management System), paragraph 8-35d (4), for failure to attend initial entry training (phase I or phase ll) within 24 months. His service was uncharacterized. 8. The applicant provides two letters that state he received a clinical assessment on 4 March 2020, and is receiving care for generalized anxiety and depression. 9. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting his uncharacterized separation from the Army National Guard (ARNG) be upgraded to honorable. He contends he had a mental health condition that mitigated his misconduct, depression. 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) The applicant enlisted into the Georgia ARNG on 21 September 2004; 2) The applicant was discharged on 4 December 2006 for failure to attend initial entry training within 24 months. His service was uncharacterized. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The VA’s Joint Legacy Viewer (JLV) and civilian medical records were also reviewed. d. The applicant asserts he was experiencing a mental health condition, which mitigated his misconduct. The applicant stated he had engaged in “shoplifting” while he was serving in the ARNG. There was no record of the applicant receiving a counseling or punishment related to shoplifting. The record was also void of any indication that the applicant attended his initial active-duty training and any separation processing documentation. There were no behavioral health records for the applicant while in active service. He did provide civilian medical documentation that he was diagnosed and treated for depression and generalized anxiety disorder since 04 March 2020. A review of JLV is void of behavioral health related treatment records, and the applicant has no service-connected disabilities e. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant asserts he has experienced depression that mitigated his misconduct. (2) Did the condition exist or experience occur during military service? Yes, the applicant reporting experiencing depression while on active service. (3) Does the condition experience actually excuse or mitigate the discharge? No, there is no nexus between depression and shoplifting or not attending his initial active- duty training within 24 months. These behaviors are not part of the natural history or sequelae of depression. However, the applicant contends he was experiencing depression that mitigated his misconduct, and per Liberal Consideration his contention warrants the board’s consideration. BOARD DISCUSSION: 1. 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. 2. After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, the Board found that relief was not warranted. The applicant's contentions, military records, and regulatory guidance were carefully considered. The Board noted that the applicant’s record is void of any indication that he attended or completed his initial active duty for training or was awarded a military occupational specialty. The record is also void of any separation processing documents. His NGB Form 22 shows he was discharged on 4 December 2006, under the provisions of NGR 600-200 for failure to attend initial entry training (phase I or phase ll) within 24 months. His service was uncharacterized. The Board reviewed the medical advisor’s determination and agreed that there is no nexus between his behavioral/mental health (depression and shoplifting) or not attending his initial active-duty training within 24 months. These behaviors are not part of the natural history or sequelae of depression. 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, 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 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, U.S. Code, Section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency (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. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, 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. 4. National Guard Regulation 600-200 (Enlisted Personnel Management) prescribes the criteria, policies, processes, procedures, and responsibilities to classify; assign; utilize; transfer within and between states; and separation of personnel in the ARNG and Army National Guard of the United States (ARNGUS) enlisted Soldiers. a. Chapter 6 (Enlisted Separations) provides that: (1) 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. (2) 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. b. Paragraph 8-35d(4), as then in effect, stated that a service member who failed to complete initial active duty for training within 24 months of enlistment would be separated with an uncharacterized discharge. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont.) AR20220005986 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1