IN THE CASE OF: BOARD DATE: 28 July 2023 DOCKET NUMBER: AR20230000019 APPLICANT REQUESTS: Reconsideration of his prior denial for upgrade of his under other than honorable conditions (UOTHC) discharge, and 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) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * 1,723 pages of post service private medical records, Department of Veterans Affairs (VA) medical records, and Social Security disability records 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 AR20090003675 on 27 May 2009. 2. The applicant states the documentation attached shows he has been diagnosed with mental health disorders that were not identified, diagnosed, or appropriately treated. If treatment had been available, the events could have been prevented. 3. The applicant enlisted in the Regular Army on 8 August 1977. He completed training with award of military occupational specialty 64C (Motor Transport Operator). He was discharged on 12 February 1980 and was issued a Certification of Military Service for this honorable period of service. 4. He re-enlisted in the Regular Army on 13 February 1980, in the grade of E-4. 5. The applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice on the following dates for the indicated offenses: * 24 October 1980, for being absent without leave (AWOL) from on or about 0600 hours 17 October 1980, until on or about 2300 hours 20 October 1980; his punishment included reduction to E-3 * 21 January 1981, for theft of $190.00 U.S. currency, on or about 25 September 1980; his punishment included reduction to E-2 * 18 February 1981, for failure to go at the time prescribed to his appointed place of duty on or about 13 February, 14 February, and 15 February 1981; his punishment included reduction to E-1 * 8 June 1981, for failure to go at the time prescribed to his appointed place of duty on or about 28 May 1981, and disobeying a lawful order on 27 May 1981, and or about 1 June and 2 June 1981 6. A DA Form 3822-R (Report of Mental Status Evaluation), dated 5 August 1981, shows the applicant had no abnormalities in behavior, level of orientation, mood, thinking process, thought content, or memory. He was determined to be mentally capable to understand and participate in the proceedings deemed appropriate by command. 7. The applicant's immediate commander notified the applicant on 17 August 1981, of his intent to recommend separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, for misconduct. 8. The applicant consulted with legal counsel on 17 August 1981. He was advised of the basis for the contemplated discharge, the possible effects of an under honorable conditions discharge, and the procedures and rights that were available to him. He waived all of his administrative rights including to submit a statement in his own behalf. 9. The appropriate authority approved the discharge recommendation on 22 September 1981, waived further rehabilitative efforts, and directed the applicant be issued a DD Form 794A (UOTHC Discharge Certificate). 10. The applicant was discharged on 28 September 1981, in the pay grade of E-1. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635- 200, paragraph 14-33b(1), for misconduct - frequent incidents of a discreditable nature with civil or military authorities. His service characterization was UOTHC. He was credited with 1 year, 6 months, and 24 days of net active service this period, and 2 years, 6 months, and 4 days of prior active service. He is shown to have had two periods of lost time totaling 22 days. 11. The Army discharge Review Board denied the applicant's request for discharge upgrade on 7 March 1996. 12. The ABCMR denied the applicant's request for an upgrade on 27 May 2009, stating the applicant's record of service included four NJPs, a bar to reenlistment, and 22 days of lost time. As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel. His request for relief was denied. 13. The applicant provides a computer disc containing: a. These documents show he reported having alcohol abuse problems, was hearing voices, having visual hallucinations, and at least 20 suicide attempts with treatment commencing in 1980. b. He began receiving mental health treatment in early 1990 and has been diagnosed as suffering from bipolar disorder, depression, schizoaffective disorder, and alcohol abuse disorder. c. The VA records [561 pages] state: (1) He had a difficult childhood and suffered physical abuse from an alcoholic father. (2) The applicant's received treatment for alcohol and marijuana use, delusional beliefs, visual hallucinations, paranoia, and a bipolar schizoaffective disorder. (3) On 21 October 1978, he was seen for incoherent slurred speech and was in the alcohol abuse program between 1979-1980. (4) A PTSD Questionnaire, dated 13 August 2019 lists his diagnoses as alcohol use disorder. In the attending physician's conclusion, he states: the applicant did not have any significant mental health symptoms until he was in the service in 1980. At that time, he began experiencing psychotic symptoms, and mood symptoms. He suffers from schizoaffective disorder, which impacts his employability. It is more likely than not that his schizoaffective disorder began while he was in the Army, and has continued uninterrupted to this date. His symptoms have been present in their current severity since the date of his VA disability claim [10/24/08]. Based on a review of available records, layperson statements, and interview, it was the opinion of this doctor that the applicant is more likely than not unable to sustain gainful employment. (5) Several of the provided VA treatment records list his medical problems as: * Bipolar disorder in full remission * Alcohol abuse * Gastroesophageal Reflux Disorder * Type 2 diabetes mellitus * Diabetic neuropathy * Mild non-Proliferative Diabetic Retinopathy * Coronary Artery Disease * Essential hypertension * Impotence of organic origin with persistent testicular pain * Chronic Obstructive Pulmonary disease * Hypoxemia (low oxygen in the blood) * Peripheral Vascular Disease of the leg/foot with edema of foot * Metatarsalgia (pain and inflammation the ball of the foot) * Leg length inequality * Tinea pedis * Intervertebral disc degeneration * Dupuytren's Contracture * Onychomycosis (a fungal infection of the nail) due to dermatophyte * Furuncle (tender nodules or pustules that involve a hair follicle and are caused by staphylococcal infection) * Hyperlipidemia * Renal stone * Headache - migraines with scintillating scotoma (visual disturbances) * Hypovitaminosis D d. In conjunction with the applicant's VA disability request, private medical records were requested and obtained from Shepard Hill Hospital and Treatment Center and Licking Memorial Hospital for the periods August 1996 through August 2012. These records show treatment for both medical and mental health related issues as reported and evaluated by the VA. Additionally, he was treated for a shoulder condition, and full cardiac workup. The primary treatment was for his schizoaffective disorder. e. The Social Security records provided show evaluation for and award of benefits for schizoaffective disorder. (1) He has been diagnosed with affective/mood disorder, bipolar disorder, congestive heart failure, diabetes, and emphysema with entitlement to disability benefits. (2) He has been receiving Supplemental Security Income benefits since 7 July 1995. (3) He was arrested for domestic violence (1995) and theft (2008). 14. In determining whether to grant relief the Boards for Correction of Military/Navy Records (BCM/NR) can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 15. MEDICAL REVIEW: a. The applicant requests, reconsideration of his prior denial for upgrade of his under other than honorable conditions (UOTHC) discharge. He contends his misconduct was related to Other Mental Health Issues. 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 into the Regular Army on 8 August 1997; 2) As outlined in the ROP, between 24 October 1980 and 8 June 1981, the applicant accepted NJP under provisions of the UCMJ on 4 separate occasions; 3) The applicant's immediate commander notified the applicant on 17 August 1981, of his intent to recommend separation action against him under the provisions of Army Regulation 635-200, Chapter 14, for misconduct; 4) The applicant consulted with legal counsel on 17 August 1981. He waived all of his administrative rights including to submit a statement in his own behalf; 5) The appropriate authority approved the discharge recommendation on 22 September 1981, waived further rehabilitative efforts, and directed the applicant be issued a DD Form 794A (UOTHC Discharge Certificate).; 6) The applicant was discharged on 28 September 1981 under the provisions of Army Regulation 635-200, paragraph 14-33b(1), for misconduct . c. The VA electronic medical record (JLV), ROP, casefiles, and the applicant’s personnel files were reviewed. The military electronic medical record (AHLTA) was not reviewed as it was not in use during the applicant’s time in service. Included in the applicant’s casefile was a Report of Mental Status Examination, dated 5 August 1981 that the applicant had no abnormalities in behavior, level of orientation, mood, thinking process, thought content, or memory. He was determined to be mentally capable to understand and participate in the proceedings deemed appropriate by command. No other military BH medical records were provided for review. d. A review of JLV showed the applicant 100 percent SC for Schizoaffective Disorder. VA C&P Examination dated 2 April 2021 showed the applicant was diagnosed with Schizoaffective Disorder, Bipolar Type and Alcohol Use Disorder Severe with onset during military service. The examiner noted a previous C&P dated 13 August 2019, that detailed the applicant was treated for Alcohol Abuse while stationed in Germany, and upon returning CONUS the applicant reported the onset of auditory hallucinations characterized by voices telling him to run. The applicant reportedly experiences hearing voices daily and noted they have endured since onset in 1980. He shared the sometimes the voices are command in nature, telling him to hurt himself, which had reportedly has resulted in approximately 20 suicide attempts since 1980. e. The applicant’s first BH-related treatment engagement with the VA appears to have occurred at the Columbus, OH, VA on 6 July 2010 whereby he reported a long history of mood swings characterized by periods of depression with low energy, anhedonia and suicidal ideation, mixed with periods of hyperactivity, decreased need for sleep, goal directed activity, and pressured speech. He also reported a long history of auditory hallucination. He was diagnosed with Bipolar Disorder with a rule-out of Schizoaffective Disorder, and prescribed psychotropic medications, and scheduled for outpatient psychiatric follow-up. The provider noted the applicant did not require a therapy referral. Encounter noted dated 5 July 2012 showed the applicant making fair progress and was compliant with medication and routinely kept his psychiatry appointments. It was also noted the applicant had been psychiatrically hospitalized at Shepherd Hill at least 25 times for suicidal ideation, with the most recent hospitalization approximately one year ago. The provider also noted the applicant with a history of Schizoaffective Disorder diagnosis. Encounter noted dated 24 December 2014 showed the applicant was psychiatrically hospitalized from 21 December – 24 December 2014 for a suicide attempt characterized by placing a knife to his chest and threatening suicide, during a drinking episode. Diagnoses upon discharge were Bipolar Disorder, most recent episode depressed, Alcohol Use Disorder, severe continuous, and Alcohol Withdrawal, without perceptual disturbance. Records suggest that upon discharge the applicant re-engaged in outpatient psychiatric treatment and remained engaged in BH treatment at the VA through 13 April 2023. Also included in the applicant casefile were multiple BH treatment records evidencing his history of treatment for Schizoaffective Disorder, Bipolar Disorder, Alcohol Used Disorder, and suicide attempts. f. The applicant requests upgrade of his UOTHC discharge. He contends his misconduct was related to Other Mental Health Issues. A review of the records was void of any BH diagnosis or treatment during service, although the applicant reported a history of treatment for Alcohol Abuse while stationed in Germany and onset of auditory hallucinations once he returned to CONUS. Post-service records showed him 100 percent SC for Schizoaffective Disorder Bipolar Type, with reported onset in 1980. Records suggest the applicant onset of auditory hallucination was likely a prodromal symptom of what would later be diagnosed as Schizoaffective Disorder Bipolar Type. As there is an association with Schizoaffective Disorder and disordered thinking, difficulty with reality testing, and poor decision making, there is a nexus between the applicant’s misconduct (i.e., being AWOL, larceny, failure to report/repair, and disobeying a lawful order), and his diagnosis of Schizoaffective Disorder. Thus, Schizoaffective Disorder was a mitigating factor in the applicant’s misconduct. g. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence in the records that the applicant had a condition or experience during his time in service that mitigated his misconduct. (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant is 100 percent SC for Schizoaffective Disorder Bipolar Type (2) Did the condition exist, or experience occur during military service? Yes. Symptom onset was reportedly in 1980. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The applicant requests upgrade of his UOTHC discharge. He contends his misconduct was related to Other Mental Health Issues. A review of the records was void of any BH diagnosis or treatment during service, although the applicant reported a history of treatment for Alcohol Abuse while stationed in Germany and onset of auditory hallucinations once he returned to CONUS. Post-service records showed him 100 percent SC for Schizoaffective Disorder Bipolar Type, with reported onset in 1980. Records suggest the applicant onset of auditory hallucination was likely a prodromal symptom of what would later be diagnosed as Schizoaffective Disorder Bipolar Type. As there is an association with Schizoaffective Disorder and disordered thinking, difficulty with reality testing, and poor decision making, there is a nexus between the applicant’s misconduct (i.e., being AWOL, larceny, failure to report/repair, and disobeying a lawful order), and his diagnosis of Schizoaffective Disorder. Thus, Schizoaffective Disorder was a mitigating factor in the applicant’s misconduct. BOARD DISCUSSION: 1. The applicant's request for a personal appearance 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 before the Board is not necessary to serve the interest of equity and justice in this case. 2. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, a medical advisory opinion and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, record of service, the frequency and nature of the misconduct, and the reason for separation. One possible outcome was to deny relief. However, the majority of the Board members found relief was warranted. Based on a preponderance of evidence available for review, the Board found sufficient evidence of in-service mitigating factors to overcome the misconduct and warrant a recommendation for relief. 3. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : :x :x GRANT FULL RELIEF :x : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20090003675, dated 27 May 2009. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD214 for the period ending 28 September 1981 showing: • Characterization of Service: Under Honorable Conditions • Separation Authority: No change • Separation Code: No change • Reentry (RE) Code: No change • Narrative Reason for Separation: No change 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): A review of the applicant's record shows his DD Form 214, for the period ending 28 September 1981 is missing an important entry that may affect his eligibility for post- service benefits. As a result, amend the DD Form 214 by adding the following entry to item 18 (Remarks): SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE REFERENCES: 1. Title 10, U.S. Code, Section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency (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. 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. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, 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. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 (Separation for Misconduct) establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. d. Paragraph 14-33b(1), provided for separation for patterns of misconduct due to frequent incidents of discreditable nature with civil or military authorities. 4. 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 Discharge Review Boards (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 post-traumatic stress disorder (PTSD); Traumatic Brain Injury; sexual assault; or sexual harassment. Boards are to give a 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. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to DRBs and BCM/NRs on 25 July 2018, 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.) AR20230000019 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1