IN THE CASE OF: BOARD DATE: 13 December 2023 DOCKET NUMBER: AR20220010784 APPLICANT REQUESTS: reconsideration of his prior request for an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Statement in Support of [VA] Claim * Narrative Summary, 6 May 1985 * Supplemental Claim * Statement of Support from spouse 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 AR20140014970 on 7 April 2015. 2. The applicant states the evidence of mental health diagnosis was overlooked. He was diagnosed in service, but the command disregarded the diagnosis. He was not advised of his rights prior to signing and agreeing to the chapter 10 separation. He should have received a general/medical discharge. Instead, he was administratively discharged for borderline personality disorder. a. He served in the Army from 31 June 1984 to 6 November 1986. His problems in the Army began after arriving to his unit, 84th Engineer Battalion. His father was an E-8 at the time was stationed at 25th Infantry Division at Schofield Barracks, HI. He took him to Fort Shafter to have his orders amended, but he still ended up at 84th Engineer Battalion. He was assigned to the motor pool section in Headquarters Company. He was concerned because he had no experience working on vehicles, the only toolbox he had ever even touched was at advanced training. This was the beginning of all his troubles. His supervisors teased, hazed, and bullied him daily. He did not feel safe or welcomed into this unit. He dreaded every day; he became anxious just at the idea of having to face these horrible people. Sergeant Br__ and Specialist Bar__ made comments about his appearance and harassed him daily. His chain of command demanded that if he was going to live (with his wife) in housing that it would be off post near them which disturbed him even further. He fell into a deep depression and had many trials and tribulations outside of his military career. b. He tried to seek help, but no one would listen or believe him. He became angry, frustrated, and a danger to himself and his family. He could no longer control his emotions and became abusive to his wife and had a sense that the world was against him and a general sense of paranoia. This only worsened and compounded with drinking. The drinking went to the extent of consuming alcohol daily and his mental health deteriorating This caused him to have a sense that he had to escape; and he fled. He feared. He would have killed himself or his wife. He asked his superiors for help, but they ignored his pleas for help. That is when he decided he had to go to Tripler Medical Center in Honolulu, HI voluntarily and be evaluated. Before going in, he had this sense of dread and that he was running out of time. So, when he was in the hospital, they had brought his wife in, and she spoke to a doctor who was a psychiatrist. 3. Review of the applicant’s service records shows: a. The applicant enlisted in the Regular Army on 31 July 1984, and he held military occupational specialty 63J (Quartermaster and Chemical Equipment Repairer). Around December 1984, he was assigned to 84th Engineer Battalion, 25th Infantry Division, HI. b. His records show he was reported absent without leave (AWOL) from 30 April 1985 to 5 May 1985 and again from 22 May 1985 to 4 June 1985. c. On 6 June 1985, he was reported again AWOL from his assigned unit and on 5 July 1985 he was dropped from the rolls (DFR) as a deserter. He surrendered to military authorities on 30 April 1986, was assigned to the Personnel Control Facility (PCF), Fort Ord, CA. d. On 7 May 1986, court-martial charges were preferred against the applicant. His DD Form 458 (Charge Sheet) shows he was charged with ne specification of AWOL from 6 June 1985 to 30 April 1986. e. On 7 May 1986, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for offenses punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial. In his request for discharge, he acknowledged: * he understood if the discharge request were approved, he might be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate * he understood he might be deprived of many or all Army benefits, he might be ineligible for many, or all benefits administered by the Veterans Administration, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life * he declined to submit a statement in his own behalf. f. His service record contains a Clinical Record – Narrative Summary that shows he was admitted to the hospital from 6 to 14 May 1985 in what appears to be alcohol abuse. On discharge from the hospital, he was diagnosed: * Axis I 3054 Alcohol abuse, episodic, * Axis I 3098 Adjustment reaction with marital discord and other stressors. * Axis I Cocaine abuse, by history. * Axis II 3018 borderline personality disorder g. On 29 October and 6 November 1986, his chain of command, including the immediate, intermediate, and senior commanders recommended approval of his request for a discharge with the issuance of an Under Other Than Honorable Conditions Discharge Certificate. h. On 6 November 1986, the separation authority approved his request for discharge under the provisions of AR 635-200, chapter 10, for the good of the service and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate. On 16 December 1986, he was discharged accordingly. i. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged in accordance with chapter 10 of AR 6235-200, for the good of the service- in lieu of court-martial with an under other than honorable conditions characterization of service. He was assigned Separation Code KFS and Reentry Codes 3/3B/3C. He completed 1 year, 4 months, and 28 days of net active service, of which 223 days was excess leave, and he had 348 days (or 11 months and 18 days) of lost time due to being AWOL. j. There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. k. On 7 April 2015, the Board denied his request for an upgrade of his discharge. The Board stated: (1) The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. As such, he voluntarily requested a discharge to avoid a trial by court-martial. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the reason for separation were appropriate considering all the facts of the case. (2) Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel. Therefore, he is not entitled to a general discharge. 4. In addition to his Statement in Support of Claim (VA), he provides a statement from his former spouse who says who states she was married to the applicant from 1984 to 1986. He (the applicant) said that his father, msg sergeant in the Army took him to Fort Shafter and talked to someone and that his orders were changed. That he would not be going to the 25th infantry where his father was stationed. However, he would be going to the 84th Engineer's motor pool. He does not know anything about cars or vehicles. He became very distraught as no one believed him. He started to drink more and became paranoid. He started to barricade the doors as if he were afraid someone was after him. He began to just leave angry and frustrated all the time. He talked to himself like he heard voices. He then just left. She only heard from him months later when he came back to Hawaii after going to Fort Ord, CA, where he got out of the Army. They divorced and he just drank and went crazy and got into trouble. 5. By regulation, AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. 6. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting reconsideration of his previous request for an upgrade of his under other than honorable conditions (UOTHC) discharge. He contends he experienced mental health conditions including Borderline Personality Disorder that 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 31 July 1984; 2) Records show he was reported AWOL from 30 April-5 May 1985 and again from 22 May-4 June 1985; 3) On 7 May 1986, court-martial charges were preferred against the applicant for being AWOL from 6 June 1985 to 30 April 1986; 4) The applicant was discharged on 16 December 1986, Chapter 10, for the good of the service – in lieu of court martial. His service was characterized as UOTHC; 4) On 7 April 2015, the Army Discharge Review Board denied the applicant's request for upgrade. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and available medical records. The VA’s Joint Legacy Viewer (JLV) and VA application documentation provided by the applicant were also examined. No additional medical documentation was provided. d. On his application, the applicant indicated mental health conditions including Borderline Personality Disorder were contributing and mitigating factors in the circumstances that resulted in his separation. There is evidence the applicant was admitted to inpatient psychiatric military treatment program after he went AWOL the first time. Per the applicant’s report, he self-referred himself to care, and he was admitted on 06 May 1985 and discharged eight days later. It was reported the applicant described a history of illegal drug and alcohol abuse prior to and during his enlistment. It was also discovered that the applicant was engaged in significant violence and abuse towards his wife, despite the applicant’s attempts to minimize his behavior. He was also reported to be experiencing significant occupational difficulties due to his misconduct and disrespectful behavior. Due to his father’s military career, the applicant’s chain of command attempted to assist the applicant and his family. However, these efforts did not appear to be successful. e. The applicant was recommended for additional therapy by the evaluating psychiatrist. There was insufficient evidence the applicant was recommended for an administrative separation for a mental health condition or the applicant not meeting retention standards. The applicant was diagnosed with Alcohol and Cocaine Abuse, Adjustment Reaction, and Borderline Personality Disorder. Shortly after his discharge from the inpatient hospital program, the applicant went AWOL again and then again. f. A review of JLV was void of mental health documentation, and the applicant receives no service-connected disability. The applicant did not provide any additional medical documentation from a licensed behavioral health provider. g. Based on the available information, it is the opinion of the Agency BH 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 contends he was experiencing mental health conditions including Borderline Personality Disorder that contributed to his misconduct. The applicant was admitted to inpatient psychiatric treatment and was diagnosed with an Adjustment Reaction and Borderline Personality Disorder while on active service. (2) Did the condition exist or experience occur during military service? Yes, the applicant contends he was experiencing mental health conditions including Borderline Personality Disorder that contributed to his misconduct. The applicant was admitted to inpatient psychiatric treatment and was diagnosed with an Adjustment Reaction and Borderline Personality Disorder while on active service. (3) Does the condition experience actually excuse or mitigate the discharge? No, there is sufficient evidence the applicant received eight days of inpatient while on active service. Per his admission, he self-referred himself to inpatient care after returning from being AWOL. He was not diagnosed with suicidality or homicidal ideation. However, he was reported to be engaged in domestic violence, significant misconduct at work, illegal drug use, and alcohol abuse. There was also evidence the applicant was not forthcoming with his command and his treatment team about the totality of his situation. He was recommended for further treatment, but the applicant went AWOL again twice shortly after his discharge from his inpatient hospital stay. There is insufficient evidence despite his initial diagnosis of an Adjustment Reaction and Borderline Personality Disorder that he was recommended for an administrative separation for these conditions. In addition, there is insufficient evidence the applicant was ever found to not meet retention standards. Lastly, there is insufficient evidence the applicant was ever found to be experiencing a mental health condition which would impact his ability to distinguish right from wrong and act in accordance with the right. However, the applicant contends he was experiencing a mental health condition and an experience that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration. 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 and available military records, the Board concurred with the advising official finding insufficient evidence despite his initial diagnosis of an Adjustment Reaction and Borderline Personality Disorder that he was recommended for an administrative separation for these conditions. In addition, there is insufficient evidence the applicant was ever found to not meet retention standards. The opine found insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. 2. The Board under liberal consideration found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. Furthermore, there is evidence that the unit provided the applicant with opportunities for rehabilitation, but the Board found evidence of the applicant’s continued misconduct of going AWOL pursuant to rehabilitation services. The Board determined the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge. The Board agreed, reversal of the previous Board decision is without merit, therefore relief was denied. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING xx xx xx DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: The Board found 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 to amend the decision of the ABCMR set forth in Docket Number AR20140014970 on 7 April 2015. 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. a. Paragraph 3-7a states that 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. Paragraph 3-7b states that 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. 2. 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 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. 3. 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; TBI; sexual assault; sexual harassment. Boards were directed 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 that misconduct which led to the discharge. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (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. 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. 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. 5. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220010784 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1