IN THE CASE OF: BOARD DATE: 22 March 2023 DOCKET NUMBER: AR20220007963 APPLICANT REQUESTS: Reconsideration of his previous request for upgrade of his under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070017759 on 18 March 2008. 2. As a new argument, the applicant states he was discharged for unsatisfactory performance. After his first three years he received an honorable discharge. His second term was hard because he was having problems with his then wife. He caught her cheating after returning early from a training exercise. He was trying to deal with his personal issues on his own after not getting any assistance from his chain of command. The correction should be made because his job performance was excellent. He let his personal issues get the best of him. Back in the 80's you were told to suck it up and move on Soldier. Today's Army is different. He still carries this pain in his heart and in his head. He wished back then Soldiers had a better support system. 3. On his DD Form 149, the applicant notes a mental health issue is related to his request, as a contributing and mitigating factor in the circumstances that resulted in his separation. 4. The applicant's complete military records are not available for review; therefore, this case is being considered using limited documents and the previous case. 5. The applicant enlisted in the Regular Army on 25 October 1982 for three years. His military occupational specialty was 19E (Armor Crewman). 6. The applicant served in Korea from on or about 18 July 1984 to 8 August 1985. 7. The applicant reenlisted on 25 November 1985 for three 3 years. 8. The applicant's previous case shows his commander initiated a recommendation to bar him from reenlistment on 22 April 1988 for his repeatedly writing bad checks. The applicant elected not to submit a statement in his own behalf and the appropriate authority approved the bar to reenlistment. 9. The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. However, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 28 July 1988, under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), Chapter 13, for unsatisfactory performance. He completed 5 years, 9 months, and 4 days of net active service. His service was characterized as under honorable conditions. He was awarded or authorized the: * Army Service Ribbon * Overseas Service Ribbon * Army Good Conduct Medal * Army Achievement Medal * Noncommissioned Officer Professional Development Ribbon 10. On 27 November 1991, the Army Discharge Review Board (ADRB) determined that the applicant’s discharge was both proper and equitable and denied his request for upgrade of his discharge. 11. The absence of the applicant's separation packet means the Board is unable to determine the specific circumstances surrounding his discharge. However, because the Board has the applicant's DD Form 214, it must presume administrative regularity, meaning unless there is proof to the contrary, the Board assumes the Army's actions were administratively correct. As stated in ABCMR's governing regulation, the Board is not an investigative body, and the applicant bears the responsibility for providing evidence to validate that an error occurred in the processing of his separation. 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. Published guidance to the 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. 14. MEDICAL REVIEW: a. The applicant is applying to the Army Board for Correction of Military Records (ABCMR) for reconsideration of his previous request for an upgrade of his characterization of service of under honorable conditions (general). 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 25 October 1982; 2) The applicant’s commander initiated a recommendation to bar him from reenlistment on 22 April 1988 for his repeatedly writing bad checks; 3) The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. However, he was discharged on 28 July 1988, Chapter 13, for unsatisfactory performance. His service was characterized as under honorable conditions; 4) On 27 November 1991, the Army Discharge Review Board (ADRB) denied his request for upgrade of his discharge. 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 distress related to his former wife’s infidelity, which mitigates his misconduct. There is insufficient evidence the applicant was diagnosed with a mental health condition while on active service. JLV provided evidence the applicant has been treated for multiple physical concerns. He was diagnosed with a persistent mood disorder secondary to his current physical pain on 25 May 2022. The applicant receives 100% service-connected disability with 70% for a mood disorder since 13 October 2021 e. Based on the available information, it is the opinion of the Agency BH Advisor there is insufficient evidence to support the applicant had condition or experience that 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. The applicant currently receives service-connected disability for a mood disorder, but it is secondary to his medical issues. C. Does the condition experience actually excuse or mitigate the discharge? No, there is insufficient evidence beyond self-report supporting the applicant was experiencing a mental health condition, while on active service. In addition, the applicant had a history of writing bad checks. There is no nexus between his reported mental health condition and this type of misconduct given that: 1) this type of misconduct is not part of the natural history or sequelae of his reported mental health condition; 2) his reported mental health condition does not affect one’s ability to distinguish right from wrong and act in accordance with the right. However, the applicant contends mental health conditions resulted in his misconduct, and per the Liberal Consideration Policy, his contention is sufficient for consideration. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was 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 medical review, the Board concurred with the advisory official finding insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. The applicant provided no evidence of post-service achievements, or letters of reference in support of a clemency determination. However, the Board determined the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately show his period of honorable service by granting a partial upgrade. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to item 18 (Remarks) of his DD Form 214 for the period ending 28 July 1988, to show: • SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE • CONTINUOUS HONORABLE ACTIVE SERVICE FROM 821025 UNTIL 851124 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to reconsideration of his previous request for upgrade of his under honorable conditions (general) discharge. 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(S): N/A 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 (Personnel Separations-Enlisted Personnel) 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 13 provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely. Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions. 4. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) 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. The Under Secretary of Defense (Personnel and Readiness) issued guidance to Service DRBs and Service BCM/NRs on 25 July 2018 [Wilkie Memorandum], 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 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) AR20220007963 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1