IN THE CASE OF: BOARD DATE: 14 March 2023 DOCKET NUMBER: AR20220008338 APPLICANT REQUESTS: An upgrade of his under honorable conditions (general) discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Forms 149 (Application for Correction of Military Record), dated 16 May 2022 and 17 November 2022, with an undated self-authored statement * Standard Form (SF) 600 (Chronological Record of Medical Care) dated 27 October 1995 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 23 May 1996 * Department of Veterans Affairs (VA) Ratings Decision Letter, dated 16 September 2021 * (NC) Criminal Record Search with six pages of criminal history, searched on 10 March 2022 * Character Reference Letters, dated 9 and 15 November 2022 * Licensed Clinical Social Worker (LCSW) Letter, dated 8 November 2022 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: a. He was denied time in service promotions and received a general discharge because of his declining performance related to his suicidal thoughts and mental health issues. His misconduct was not willful because his mental health at the time met the VA's definition of insanity. b. His First Segreant (1SG) started mentally abusing him around the end of September with degrading remarks about his child and his child's mother. He continuously verbally abused and mocked him for failing Air Assault School in front of peers and officers. The delay in his promotion added more stress because his child's supplements were increased, which left him with the bare minimum to live on each month. The 1SG used every opportunity to mentally beat him down causing him to become depressed and pull away from family and friends. c. In October 1995, he requested treatment for depression because he was having increased thoughts of suicide and an inability to perform his military duties. He was finally referred to a psychologist on 27 October 1995. During this time, he was given assignments that allowed others to belittle him, driving him deeper into depression. He was not given adequate treatment and each time he elevated issues to the chain of command he received more mental abuse. He asked to see the chaplain several times but was not given any help. He sent documents showing he requested help, but it took until January 1996 to get a stress class, which he does not have proof of attending. He also asked for a hardship discharge due to his declining mental health. d. He is rated 100 percent (%) service-connected disabled for generalized panic attacks and major depressive disorder recurrent, severe with psychotic features which he believes started as an adjustment disorder with a depressed mood while serving. The Army escalated his mental problems into more severe issues by being denied mental health and spiritual care which affected his mind. 3. On his DD Form 149, the applicant notes post-traumatic stress disorder (PTSD) and other mental health issues are related to his request, as contributing, and mitigating factors in the circumstances that resulted in his separation. He also states this is a request for reconsideration of Docket Number AR20120021687, that case was reviewed by the Army Discharge Review Board and closed without action on 19 December 2012. 4. The applicant’s service records show: a. In preparation for his enlistment the applicant completed a DD Form 1966 (Record of Military Processing – Armed Forces of the United States), page 3 of this form shows the applicant was granted a moral waiver on 1 February 1995, for his previous misdemeanor charge of assault inflicting serious injury. b. On 7 April 1995, the applicant enlisted in the Regular Army, for a 3-year service obligation. Upon completion of his basic training at Fort Sill, OK, he was reassigned to Fort Bliss, TX. to complete his advance individual training (AIT). c. While attending AIT at Fort Bliss, TX, the applicant was arrested by the El Paso Police Department on or about 29 July 1995 for criminal mischief and stealing a wallet with miscellaneous bank cards, military identification card, driver's license, cigarettes, and a pair of sunglasses. He and another Soldier were detained until on or about 1 August 1995, when they were released to the unit 1SG. d. On 25 August 1995, he completed AIT, with award of military occupational specialty 14S (Avenger Crewmember), and was assigned to Fort Campbell, KY, he arrived at his unit on 20 September 1995. e. A SF 600, shows he was evaluated by the Fort Campbell, KY, Community Mental Health Clinic (CMHC) on 27 October 1995 and was diagnosed with adjustment disorder with depressed mood, the form is void of notes from a physician. The primary counselor is noted as a "Psych Specialist." f. On 18 March 1996, the applicant accepted nonjudicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice, for one specification of being absent without leave (AWOL) from his unit on or about 7 February 1996 until on or about 9 February 1996; and one specification of failing to obey an order or regulation on or about 5 February 1995. His punishment included a suspended reduction to E-1, forfeiture (suspended), 14-day restriction (suspended), and extra duty. The commander included a detailed timeline explaining the following events: * on 26 January 1996, the applicant requested emergency leave to visit a terminally ill grandfather, after explaining his responsibility to return to duty on time he was granted regular leave and departed on a Greyhound bus * on 4 February 1996, he contacted the 1SG requesting an extension of his leave due to weather and road conditions; after evaluating the circumstances, the commander granted an extension and the 1SG told him to start back Monday morning and be safe, and to provide updates * on 7 February 1996, the applicant missed formation and was not back in the area; the Platoon Sergeant called his mother who sated he did not leave until Tuesday 6 February 1996 around 1630 on the Greyhound bus * the applicant called 1SG around 1400 stating he was in and on his way back home because his grandfather passed away, the 1SG explained he was considered AWOL and should get back to post, he did not understand why and hung up on the 1SG * on 9 February 1996, at 0800 he was awakened by the 1SG and told he would receive counseling from the Command Sergeant Major and 1SG later that afternoon, after the counseling he was sent to see the chaplain * on 13 February 1996, the commander counseled the applicant about the above events, he understood that he was only given two days and did not care about getting in trouble he wanted to be in with his girlfriend and his child, he did not stay for the funeral but spent time with them instead * on 9 February 1996, after being AWOL he returned and did not inform anyone he was back just returned to his room g. On 27 March 1996, 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 proceedings, was mentally responsible, and psychiatrically cleared for administrative action. h. On 11 April 1996, the applicant underwent a separation examination, during which he noted, recurrent back pain and he was on a profile expiring on 15 April 1996; improvement but will refer to physical therapy; and excessive worry and depression had decreased a lot since attending stress management class in January 1996 and since the command changed and he was getting out. The examining physician also noted his back pain with profile expiring on 15 April 1996; and excessive worry and depression with five sessions of stress management class in January 1996, feeling better cleared by CMHC on 27 March 1996. He was found qualified for separation. i. On 13 May 1996, 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, paragraph 14-12b, by reason of misconduct. As the reasons, his commander cited the applicant's AWOL on numerous occasions, failing a physical fitness test, and wrongfully stealing a wallet resulting in his arrest. The applicant acknowledged receipt the same day. j. On 15 May 1996, the applicant consulted with counsel and acknowledged receipt of the commander's notification memorandum. He elected to voluntarily waive having his case heard before an administrative separation board contingent upon receiving a general discharge. He elected not to submit statements in his own behalf. k. Subsequently, the applicant's commander formally recommended his separation, under the provisions of AR 635-200, Chapter 14-12b, by reason of patterns of misconduct. He recommended a waiver of further rehabilitative requirements and general discharge. l. The separation authority accepted the applicant's conditional waiver request and approved his recommended discharge with the issuance of a General Discharge Certificate. m. On 23 May 1996, the applicant was discharged accordingly. His DD Form 214 shows he was discharged under the provisions of AR 635-200, paragraph 14-12b, by reason of misconduct. His service was characterized as under honorable conditions (general). He was credited with completing 1 year, 1 month, and 14 days of net active service this period. He was awarded or authorized the National Defense Service Medal, Army Service Ribbon, and two marksmanship badges. 5. In addition to the previously discussed documents, the applicant provides: * VA Ratings Decision letter showing he is rated at 100% disabled for generalized anxiety disorder with panic attacks and major depressive disorder recurrent, severe with psychotic features * NC criminal background check showing criminal check history * two character reference letters attesting to the changes in his life since receiving help for his mental disabilities, and the changes he went through during and after service; and his support in the growth of a young man with learning disabilities [provided in entirety for review] * LCSW, letter showing he is receiving services for schizophrenia consistent with a psychotic disorder that can cause hallucinations, delusions, difficulty maintaining a healthy emotional state, to include losing touch with objective reality and difficulty integrating the facets of everyday life 6. 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. 7. 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. 8. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting an upgrade of his 23 May 1996 discharge characterized as under honorable conditions (general) and, in essence, a referral to the Disability Evaluation System (DES). He states: “In early October 1995, I requested to seek treatment for my depression due to me having increased thoughts of suicide, and the inability to function in the Army in that current state of mind. When I was finally given permission on October 27, 1995, to receive services from the psychologist on base after a steady decline in my performance. During this time, I was given assignments that allowed my peers, and other unit leaders to belittle me which drove me deeper into the depression state and my anxiety and stress reached new levels. I was not given adequate treatment for my issues and each time I escalated the issue through the chain of command I received more mental abuse. I asked several times to speak with Chaplin and seek guidance to bring me out of this depression and wasn't given any help. I have sent all documents showing where I requested the assistance by a professional to help with all my issues with depression and anxiety. It took them until January 1996, to give me a stress class because I had become worst, but I do not have any records showing my participation in that class. During this time, I also asked for a hardship discharge due the steady declined in my mental state. I received 100% service-connected disability for my mental health that began as adjustment disorder with depressed mood in the Army and escalated to more sever mental issues from being denied treatment for mental health and spiritual for the chaplain.” b. The Record of Proceedings outlines the applicant’s military service and the circumstances of the case. The DD 214 for the period of service under consideration shows he entered the regular Army on 7 April 1995 and received an under honorable conditions (general) discharge 23 May 1996 under the separation authority provided by paragraph 14-12b of AR 635-200, Active Duty Enlisted Administrative Separations (17 September 1990): Pattern of Misconduct. c. A 27 October 1995 military medical document shows the applicant had a provisional diagnosis of “Adjustment disorder with depressed mood.” d. A military police report shows the applicant was arrested at a Motel for theft: Between 2330, 29 Jul 95 and 0001, 30 Jul 95, at {Applicant} and PV1 were arrested for the offense of Theft. According to Officer , (EPPD = Police Department), he was responding to a criminal mischief case, when he attempted to enter the men' s restroom at the Motel and the door was forcibly closed. Officer . identified himself as EPPD and the door was opened. Officer . walked in and observed PV1 standing behind the door and PV1 {Applicant} holding several documents. PV1 {Applicant} then walked into the bathroom stall and attempted to flush the documents down the toilet. The above listed property did not flush due to a pair of sunglasses partially engaged in the runoff pipe. Officer detained PV1 {Applicant} and PV1 EPPD Officers found Mr. . who stated that his wallet was stolen and identified the above property as being his. PV1 {Applicant} and PV1 were placed under arrest and searched. A black leather wallet (belonging to Mr. ) was found in PV1 jeans pocket. PV1 {Applicant} and PV1 were transported and booked into the county Jail (EPCJ) in lieu of $2,000,00 bond each. e. The applicant underwent a mental status evaluation on 27 March 1996. The provider documented a normal examination and no abnormalities were noted. The examiner opined the applicant had the mental capacity to understand and participate in procedures, was mentally responsible, and was “psychiatrically cleared for any administrative action deemed appropriate by command.” f. He underwent his pre-separation medical examination on 11 April 1996. Noted on the Report of Medical History was a recurrent history of low back pain and depression with “increased worry.” Noted by the provider on the accompanying Report of Medical Examination: “Currently treated at troop medical clinic for low back pain … 5 sessions stress management class in January 1996. Feeling better, cleared 27 Mary 1996 by community mental health activity.” g. No additional medical documents were submitted with the application and his service predates AHLTA. h. On 13 May 1996, the applicant’s company commander notified him of his initiation of separation action under paragraph 14-12b or AR 635-40: “The reasons for my proposed action are: You have been AWOL on numerous occasions; you have failed a PT test; and you wrongfully stole a wallet which resulted in your arrest.” i. Review of the applicant’s records in JLV show the applicant has been service connected for “Neurosis, Generalized Anxiety Disorder.” j. There is no evidence the applicant had a service incurred mental health or other medical condition which would have failed the medical retention standards of chapter 3, AR 40-501, Standards of Medical Fitness, and been a cause for referral to the DES prior to his discharge. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of her office, grade, rank, or rating prior to his discharge. k. It is the opinion of the ARBA medical advisor that neither a discharge upgrade nor a referral of his case to the DES is warranted. Kurta Questions: (1) A. Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant has been diagnosed with a potentially mitigating BH condition, Anxiety disorder with depressed mood. (2) B. Did the condition exist or experience occur during military service? Yes (3) C. Does the condition or experience actually excuse or mitigate the discharge? Partially. As there is an association between his diagnosed mental health condition, poor motivation, and avoidant behaviors, the condition mitigates his failure on the Army Physical Fitness Test and incidents of AWOLs. However, the condition cannot mitigate theft as the condition does not interfere with one’s ability to distinguish between right and wrong and act in accordance with the right. ? 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 on 23 May 1996 due to a pattern of misconduct. He received an under honorable conditions (general) discharge. The Board concurred with the medical advisory opinion finding insufficient evidence supporting a behavioral health condition or 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) AR20220008338 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1