IN THE CASE OF: BOARD DATE: 28 February 2023 DOCKET NUMBER: AR20220007046 APPLICANT REQUESTS: An upgrade of his under honorable conditions (general) discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENT CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the 3-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. The applicant states while in the military he suffered from mental health issues due to the environment in which he was raised. He had problems adjusting to the military lifestyle and got into trouble for abusing alcohol and drugs due to these mental health issues. He was ultimately discharged for failing to adapt to the military. 3. The applicant’s service records show: a. On 4 June 1984, the applicant enlisted in the Regular Army, for a 3-year service obligation. Upon completion of his training and award of military occupational specialty 31C (Single Channel Radio Operator), he was assigned to Fort Shafter, Hawaii, and arrived at his unit on 28 December 1984. b. DA Forms 4833 (Commanders Report of Disciplinary or Administrative Action), which were completed by commanders or supervisors of Soldiers identified in corresponding Military Police or Criminal Investigative Division reports. Two forms were completed on the applicant showing the following: * on 18 May 1985, he received a driving under the influence offense (DUI), and was found guilty in a civil judicial court on 28 May 1985 and sentenced to 14 hours of Alcohol Abuse Rehabilitation, accessed 4 traffic points, license suspended for 90 days, and fined $175 * on 19 September 1985, he received a failure to obey an order or regulation offense and driving under revoked privileges offense, and received an administrative oral and written reprimand c. On 11 February 1986, the applicant accepted nonjudicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongfully using marijuana on or about 21 January 1986. His punishment included reduction to private/E-1, 30 days extra duty, and 30 days restriction. d. On 12 February 1986, the applicant underwent a separation medical examination. The corresponding forms show, the applicant listed he had eye trouble, head injury and foot trouble. The examining provider noted his eye trouble was corrected with glasses, his head injury referred to an uncomplicated scalp laceration in 1984 and being hit with a beer bottle in 1985, with no neurological defects, he had cellulitis in his left foot in 1984 that was resolved, he counseled the applicant about smoking and found him qualified for separation. There were no mental health issues listed at this time. e. On 20 February 1986, the applicant underwent a mental status examination. The DA Form 3822-R (Report of Mental Status Evaluation) shows the applicant had the mental capacity to understand and participate in proceeding and was mentally responsible. f. On 25 February 1986, the applicant's immediate commander notified the applicant of his intent to initiate actions to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, by reason of misconduct. As the reasons, his commander cited the applicant's wrongful use of marijuana, driving on revoked driving privileges, and DUI. g. On 28 February 1986, the applicant consulted with counsel and acknowledged receipt of the commander's notification memorandum. He was advised of the basis for the contemplated action to separate him and of the rights available to him. He elected to submit the following statements in his own behalf. I [the applicant] hereby make the following statement on why I should be given an honorable discharge. I have been with the unit since Dec 27, 1985 and have been on several field problems and have done an outstanding job. My military bearing and appearance are very good. I have taken two silver streamers and received 1 Division Certificate of Achievement for outstanding physical fitness, I feel that I have been a great asset to this unit, and division and request I be issued and honorable discharge. h. On 28 February 1986, the applicant's commander formally recommended the applicant's separation, under the provisions of AR 635-200, paragraph 14-12b, and a waiver of further rehabilitative measures. The applicant acknowledged rehabilitative measures and noted a reassignment would be of benefit. i. On 3 March 1986, the applicant's intermediate commander recommended approval of his separation. On 11 September 1987, the separation authority waived the requirement for a rehabilitative transfer, approved the recommended discharge, and directed the applicant be issued a DD Form 257A (General Discharge Certificate). j. On 25 March 1986, the applicant was discharged. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of AR 635-200, paragraph 14-12b, by reason of misconduct – pattern of misconduct, Separation Code JKM, Reentry Code 3). His service was characterized as under honorable conditions (general), and he was credited with completing 1 year, 9 months, and 22 days of net active service this period. He was awarded or authorized the Army Service Ribbon and a marksmanship badge. 4. On 18 September 1987, the the Army Discharge Review Board (ADRB) reviewed the applicant's request for an upgrade of his discharge. The Board determined after careful consideration of his military records and all other available evidence, that he was properly discharged, and denied his request. He did not allege medical issues at that time. 5. 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. 6. Published guidance to the Service 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. ? 7. MEDICAL REVIEW: a. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents, integrated Personnel Electronic Records Management System (iPERMS), and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: Records are void of an in- or post-service behavioral health condition or liberal consideration experience. Accordingly, documentation is insufficient to make a determination; there is no medical mitigation. b. The applicant was discharged on 25 March 1986 under AR 635-40, Chapter 14- 12b, Patterns of Misconduct, with a General characterization. The basis for separation was a May 1985 DUI, driving under revoked privileges in September 1985, and using marijuana in January 1986. The applicant is requesting a characterization upgrade to Honorable asserting he had mental health difficulties secondary to his home environment making military adjustment difficult leading to alcohol and drug issues. c. Due to the period of service, active-duty electronic medical records are void. The packet did contain a February 1986 separation physical and Chapter Mental Status Exam (MSE). The separation physical is void of behavioral health symptoms, treatment, or diagnoses per applicant endorsement or provider’s notation. The Chapter MSE cleared the applicant with no diagnosis. d. The applicant is not service connected and VA records only contain uploads of the applicant’s DD214 and applications for care. The applications for care are void of an asserted behavioral health condition, liberal consideration experience, or need for behavioral health care related to service. e. The applicant did not submit medical records for review. Kurta Questions (1) Does the applicant have a condition or experience that may excuse or mitigate the discharge? YES. Solely based on the applicant’s assertion he entered service with mental health difficulties, secondary to his home environment, which led to the misconduct. (2) Did the condition exist or experience occur during military service? YES. Solely based on the applicant’s assertion he entered service with mental health difficulties, secondary to his home environment, which led to the misconduct. (3) Does the condition or experience actually excuse or mitigate the discharge? UNKNOWN. Records are void of an in- or post-service diagnosis or liberal consideration experience for determination. (4) Does the condition or experience outweigh the discharge? N/A BOARD DISCUSSION: 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 a pattern of misconduct and he received a general discharge, after completing 1 year and 9 months of active service. The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. 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. ? 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 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 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. 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 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of frequent incidents of discreditable nature with civil or military authorities), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 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 post-traumatic stress disorder (PTSD) criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions 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) AR20220007046 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1