IN THE CASE OF: BOARD DATE: 22 February 2023 DOCKET NUMBER: AR20220007468 APPLICANT REQUESTS: upgrade of his under honorable conditions, general discharge to honorable and restoration of his rank to sergeant/E-5. Additionally, he requests an appearance before the Board via video/telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) Duplicate * screenshot of Rated Disabilities 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 he was dealing with alcohol and poly substance abuse due to an injury that occurred while he was in the military. His injuries were never treated, he was just given pain pills and he developed an addiction. He did ask for help. They just sent him home. He searched for treatment from the Veterans Administration (VA), and got treatment. He has sobriety now; however, this is a lifetime problem. The applicant notes other mental health is related to his request. 3. The applicant enlisted in the Regular Army on 8 February 2000, for 4 years. His military occupational specialty was 91W (Medical Specialist) with an additional skill identifier of Y2 (Licensed Practical Nurse). 4. His Noncommissioned Officer Evaluation Reports (NCOER) from the periods August 2000 through November 2001 and a Service School Academic Evaluation Report, dated 1 February 2001 shows the applicant's rank as SGT/E-5. 5. The applicant’s commander statement regarding a settlement committee board, dated 2 May 2001, shows he found the applicant was dedicated, conscientious, honest, and reliable. His commander had no reason for concern with respect to the applicant’s use of controlled substances. 6. The applicant served in Korea from 18 June 2001 through 17 June 2002. 7. A Criminal Investigation Division (CID) Agent's Investigation Report, dated 2 January 2002 shows Special Agent went to Yongsan, Korea to obtain information of Tylox from the pharmacy personnel. A Soldier recalled the applicant, who was a treatment NCO at the health care clinic, picked up SGT Tylox medication because SGT was in too much pain to come and get it himself and authorized the applicant to do so for him. Another Soldier recalled the applicant coming to the window on several occasions and picking up medications from the pharmacy, either for himself as a patient or for another patient being treated at the Health Care Clinic. SA verified this incident was not reportable because it did not meet the amount greater than 30 grams of the controlled substance. 8. The applicant was reassigned to Headquarters Service Company, 168th Medical Battalion, Korea on 25 January 2002. 9. On or about 2 April 2002, the CID report shows SA conducted a search of NC Board of Nursing that showed on 14 May 2001 the applicant settled agreements for exceeding scope of practice, diverting, and using controlled substances, and impaired on duty. His license was suspended for one year. 10. The applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 12 July 2002 for wrongfully possessing two capsules of Tylox, a schedule II-controlled substance on or about 9 January 2002 and with intent to deceive, and for on or about 2 February 2002, make to CID an official statement which was false and known to be false. His punishment consisted of reduction to specialist/E-4, forfeiture of $738.00 pay, restriction, and extra duty. 11. The applicant's immediate commander notified him of his intent to initiate separation actions against him under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), paragraph 14-12c, by reason of misconduct – possession of illegal drugs. 12. The applicant acknowledged receipt of the proposed separation notification on 17 September 2002 and consulted with counsel. He acknowledged that he was advised of the basis for the contemplated separation and its effects, the rights available to him and the effect of a waiver of his rights. He elected to a submit statement in his own behalf. In his statement, he stated he was recently found guilty of a charge. He felt he was innocent and was charged based on a past situation. He was proud to be a Soldier and proud he was an NCO for two years. He asked to exercise the commander open door policy to get a chance to speak to him in person. 13. The applicant's commander formally recommended the applicant's separation from service under the provisions of Army Regulation 635-200, Chapter 14. The commander recommended he be issued a general, under honorable conditions discharge. 14. The applicant's chain of command recommended the applicant be issued a general, under honorable conditions discharge. 15. The separation authority approved the recommended discharge on 27 September 2002 and directed the issuance of a DD Form 257A (General Discharge Certificate). 16. The applicant was discharged on 9 October 2002. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct. He was discharged in the grade of E-4. His characterization of service was under honorable conditions (general). He completed 2 years, 8 months, and 2 days net active service this period. He was awarded or authorized the: Army Achievement Medal, National Defense Service Medal, NCO Professional Development Ribbon, Army Service Ribbon, and the Overseas Service Ribbon. 17. The applicant provides a list of rated disabilities: panic disorder with agoraphobia, major depressive disorder, alcohol, and polysubstance dependence with a rating of 100% service connected. 18. By regulation, Soldiers are subject to separation under the provisions Army Regulation 635-200, Chapter 14, for commission of a serious offense. A discharge under other than honorable conditions (UOTHC) 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. 19. 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. 20. MEDICAL REVIEW: a. The applicant is applying to the Army Board for Correction of Military Records (ABCMR) for an upgrade of his under honorable conditions, general discharge to honorable and restoration of his rank. He contends he had a mental health condition, which mitigated his misconduct. 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 in the Regular Army on 08 February 2000; 2) His military occupational specialty was 91W (Medical Specialist) with an additional skill identifier of Y2 (Licensed Practical Nurse); 3) The applicant served in Korea from 18 June 2001-17 June 2002; 4) There was a CID investigation, dated 02 January 2002, concerning the controlled substance Tylox. The applicant was found to be obtaining this medication for another Solider and himself repeatedly from the pharmacy; 5) The applicant accepted nonjudicial punishment on 12 July 2002 for wrongfully possessing two capsules of Tylox, and for intent to deceive by making an official false statement to CID; 6) The applicant was discharged on 9 October 2002, Chapter14-12c, by reason of misconduct. His characterization of service was under honorable conditions (general). 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) was also examined. d. The applicant asserts he was experiencing “alcohol and poly-substance abuse due to an injury that occurred while he was in the military.” There is no evidence the applicant was diagnosed or treated for a mental health condition while on active service. However, there is evidence in JLV that the applicant has been diagnosed and treated for opioid abuse/dependence, alcohol dependence, depression, anxiety, bipolar disorder, panic disorder, insomnia, eating disorder, and obsessive-compulsive disorder. The applicant receives 100% service-connected disability for panic disorder since 01 November 2019. e. Based on the available information, it is the opinion of the Agency BH Advisor there is sufficient evidence to support the applicant had condition or experience that partially mitigated his misconduct. ? Kurta Questions A. Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he was experiencing a mental health condition which contributed to his misconduct. B. Did the condition exist or experience occur during military service? Yes, the applicant contends his mental health condition occurred while on active service. C. Does the condition experience actually excuse or mitigate the discharge? Partially. The applicant stated he was experiencing poly-substance and alcohol abuse as a result of a physical injury that occurred during military service. The applicant also receives service-connected disability for panic disorder. The applicant was found guilty of being in the possession of an illegal substance. It is likely he was self-medicating to avoid emotional and physical pain. There is a nexus between this type of avoidant behavior and some mental health conditions. However, there is no nexus between the misconduct giving a false statement to CID and the mental health conditions the applicant reported. 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 his characterization of service. Upon review of the applicant’s petition, available military records and the medical review, the Board considered the advising official findings there is a nexus between this type of avoidant behavior and some mental health conditions. However, there is no nexus between the misconduct giving a false statement to CID and the mental health conditions the applicant reported. The Board noted the advising official opinion that there is sufficient evidence to support the applicant had condition or experience that partially mitigated his misconduct. Evidence show the applicant scored in the 330’s on the extended scale on all his NCOER evaluations and based on his own admission, he denied that anything ever happened to the revieing official. Based on the preponderance of evidence, the Board found insufficient evidence of in -service mitigating factors to overcome the misconduct 2. The Board found the applicant did not provide post service achievements or character letters of support for the Board to weigh a clemency determination. The applicant was discharged for misconduct and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. Therefore, the Board denied relief. 3. 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. 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. 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. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. 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. 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. Chapter 14 of this regulation 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 UOTHC discharge was normally considered appropriate. However, the separation authority could direct a general discharge if 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 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. 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) AR20220007468 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1