IN THE CASE OF: BOARD DATE: 23 August 2023 DOCKET NUMBER: AR20230000021 APPLICANT REQUESTS: * Upgrade of his general discharge under honorable conditions * Permission to appear personally before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) letter * Army Discharge Review Board (ADRB) Proceedings for ADRB Docket Number AR2000042496 * Unofficial Transcripts * Three White House Notes and Letters * Two U.S. Senators' letters * U.S. Representative Letter * Certificate of Achievement * State Small Business Certificate * State Filing Endorsement * BMe (Black Male Engagement) Leadership Award Winners Listing * Graduate-Level Honor Society Recognition * Fellowship Award Announcement FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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, in effect, when the Army separated him, he was undergoing treatment for mental health issues, which had been exacerbated by his active-duty service; at the time, he was ignorant as to the severity of his illness. Today, post- traumatic stress disorder (PTSD) and other behavioral health conditions are not viewed as weaknesses by the military or the society at large. a. In June 2000, the ADRB re-characterized the applicant's under other than honorable conditions separation to a general discharge under honorable conditions; he accepted this result because of the shame he felt about his mental illness. He has since come under the VA's care and, because of the treatment, he is now in the process of completing a PhD (Doctor of Philosophy), and he owns his own business. b. The applicant is requesting this upgrade because, "my actions over the past 20 years demonstrate what I was capable of accomplishing in the Army if mental health issues were not considered a weakness in American Society at large. I am not blaming anyone from my past behavior; it is the past, and I accept full responsibility for the decision I made." However, he argues that the Board should nonetheless favorably consider his petition because of the current policy changes that consider PTSD and mental health as mitigating factors when granting upgrade requests. 3. The applicant provides a copy of his ADRB proceedings and other documents showing his behavioral health condition and his post-service achievements: a. VA letter dated November 2014, which shows the VA awarded the applicant service-connection for schizophrenia and, effective 28 August 2014, the VA increased his disability rating to 100 percent. b. Unofficial transcripts for Associate of Science and Bachelor of Science degrees, a master's degree, credits toward a PhD. c. White House and Members of Congress correspondence, thanking the applicant for sharing his personal story and his opinions. d. Documents confirming the applicant has a Disabled Veteran-owned small business. e. Certificates and correspondence reflecting a leadership award, recognition of the applicant's service to graduate and professional school students, and his selection for a fellowship program. 4. A review of the applicant's service record reveals the following: a. On 27 February 1996, the applicant enlisted into the Regular Army for 3 years; he was 23 years old. Upon completion of initial entry training and the award of military occupational specialty 11B (Infantryman), orders assigned him to an infantry battalion in Hawaii; he arrived at his new unit, on or about 16 July 1996. At some point prior to January 1998, the applicant's leadership promoted him to private (PV2)/E-2. b. On 9 January 1998, the applicant's unit reported him as absent without leave and dropped him from unit rolls, on or about 9 February 1998. On 10 February 1998, military authority apprehended the applicant in Hawaii and returned him to military control. Orders subsequently reassigned him to the U.S. Army Personnel Control Facility (PCF) at Fort Sill, OK; he arrived at Fort Sill, on or about 18 February 1998. c. On 18 February 1998, the PCF preferred court-martial charges against the applicant for AWOL from 9 January to 10 February 1998 (32 days). On 19 February 1998, after consulting with counsel, the applicant voluntarily requested discharge under the provisions of chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). (1) In his request, he affirmed he was acting of his own free will and acknowledged he was guilty of the charge against him. In addition, he elected not to submit statements in his own behalf. (2) Upon submission of his separation request, the PCF authorized the applicant to take indefinite excess leave, and he departed Fort Sill, on 19 February 1998. d. On 13 May 1998, the separation authority approved the applicant's separation request and directed his under other than honorable conditions discharge; in addition, the separation authority ordered the applicant's reduction to the lowest enlisted grade. On 1 June 1998, orders discharged the applicant accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 2 months, and 3 days of his 3-year enlistment contract; item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) states, "None." e. On 19 May 2000, the applicant petitioned the ADRB requesting an upgraded character of service. (1) The applicant argued he was discharged due to his mental disorder. He had gone AWOL from the Army because he had asked to stay at the Army hospital, as suggested by his doctor, but his sergeant decided the applicant should return to the unit; the applicant declared, "I could not handle the pressure that they were puttin(g) on me. I was already being discharged for medical reasons. I did not want to leave the Army the way I did." (2) On 21 June 2000, the ADRB conducted a records review and voted to upgrade the applicant's separation to a general discharge under honorable conditions; the ADRB additionally directed the reissuance of the applicant's DD Form 214 to reflect the upgrade. 5. AR 15-185 (ABCMR) states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 6. During the applicant's era of service, Soldiers charged with Uniform Code of Military Justice (UCMJ) violations, for which a punitive discharge was among the punishments, could request separation under chapter 10, AR 635-200. Such requests were voluntary and offered in-lieu of trial by court-martial. The Manual for Courts-Martial, in effect at the time, showed UCMJ Article 86 (AWOL for more than 30 days) included a punitive discharge. 7. 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. 8. 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. 9. MEDICAL REVIEW: a. Background: The applicant is applying to the ABCMR requesting an upgrade of his general discharge under honorable conditions. He asserts at the time of separation he was undergoing treatment for service-exacerbated mental health conditions. b. The specific facts and circumstances of the case can be found elsewhere in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: * He enlisted in the RA on 27 February 1996. * On 9 January 1998 he was reported as AWOL, and he was subsequently DFR on/about 9 February 1998. He was apprehended and returned to military control on/about 10 February 1998. * Court-martial charges were preferred on 18 February 1998 for the period of AWOL above. He subsequently voluntarily requested separation under AR 635- 200 Chapter 10 (Discharge in Lieu of Trial by Court-Martial) and was ultimately discharged Under Other Than Honorable conditions. * He previously petitioned the ADRB in May 2000 at which time his discharge characterization was upgraded to General Under Honorable Conditions. c. Review of Available Records Including Medical: All supporting documents reviewed. Lack of citation or discussion in this section should not be interpreted as lack of consideration. DD Form 149 references PTSD and other mental health conditions associated with application. Department of Veterans Affairs rating document dated 3 November 2014 includes diagnosis of schizophrenia, with new percentage of 100% assigned as of 28 August 2014. The advisor appreciated the letters provided by the applicant in addition to other accomplishments/educational achievements in the file. VA evidence dated 11 September 2003 shows an effective date of 19 May 2000 for service connection of schizophrenia. DD Form 149 dated 23 February 2004 includes applicant stating he was in the process of being discharged for medical reasons (schizophrenia) at the time of his misconduct/separation; he also noted that he was not in a stable state of mind and suggests his decisions were potentially impacted by his medication use. d. Neither AHLTA nor GENESIS was utilized as an electronic medical record during his period of service. A review of HAIMS did not return any documents for the applicant. There are no active-duty service treatment records found in his supporting documents or submitted with his application. e. Available VA records were reviewed via JLV. Records indicate applicant has a 100% service connection for psychosis/undifferentiated schizophrenia. Compensation and Pension evaluation dated 28 October 2009 indicates applicant began treatment for mental health issues in 1998 to include an inpatient admission for depression and schizophrenia at Tripler Army Hospital. He was also hospitalized in 1999 (apparently while incarcerated on a sexual assault charge) and again in 2002. At the time of this Compensation and Pension evaluation, he was diagnosed with schizophrenia, chronic undifferentiated type. A subsequent Compensation and Pension Evaluation of 13 June 2012 included diagnosis of schizophrenia, mostly in remission and not currently in treatment. Per history, he had a previous period of homelessness (living in shelter) and had been incarcerated 3 times since 1998, to include once for sexual assault. Most recent Compensation and Pension found in JLV was dated 27 October 2014 and again included diagnosis of schizophrenia. A personality disorder was also diagnosed, which would not be considered a potentially mitigating psychiatric condition. This evaluation referenced two weeks of inpatient treatment at Tripler while active duty, to include use of antipsychotic medication. His VA treatment record dates to May 2003. Evaluation of 22 May 2003 described paranoia and a history of inpatient treatment while in the Army for diagnosis of schizophreniform disorder (often suggestive of an early phase of schizophrenia) with use of antipsychotic and antidepressant medication. His VA treatment record will not be fully recounted. Applicant is service connected for schizophrenia, and the linkage to likely psychotic symptoms (per diagnosis and medication usage) during active service is established under liberal consideration guidelines. Per more recent treatment, a psychiatry encounter of 14 January 2020 indicated minimal treatment since 2017 despite urging to come regularly. He was working on his PhD, and his last paid employment was in 2015. He was not taking, nor was he interested in, psychotropic medication and diagnosis of schizophrenia was again noted. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant asserts mental health conditions associated with the circumstances of his discharge, and records indicate he is 100% service-connected for schizophrenia. Although he references PTSD in his application, there is no evidence of PTSD in his available records. (2) Did the condition exist or experience occur during military service? Yes. Although no records of his diagnosis and treatment in service are available, he is service connected for schizophrenia and VA medical records support diagnosis/treatment of psychosis on active duty. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The applicant is service connected for schizophrenia, and VA records contain data associated with the treatment of psychosis on active duty. Psychosis, to include schizophrenia, is associated with poor judgment and decision-making; limited insight; detachment from reality (to include paranoia); and potentially disorganized behavior. As such, under liberal consideration guidelines there is a reasonable nexus between his psychiatric condition and the AWOL charges leading to his separation. ? 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 medical review, the Board recognized the advising official findings under liberal consideration guidelines that there is a reasonable nexus between his psychiatric condition and the AWOL charges leading to his separation. The Board found the applicant’s post service achievements since his discharge noteworthy. The Board determined there was insufficient evidence of in- service mitigation to overcome the misconduct. 2. The Board agreed, the applicant previously received a discharge upgrade to general under honorable conditions. The Board found the applicant was apprehended and returned to military control for his AWOL, the Board determined, based on the preponderance of the evidence, 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, USC, 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, USC, section 1556 (Ex Parte Communications Prohibited) 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. AR 635-200, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was separation with honor. (1) Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty or was otherwise so meritorious that any other characterization would clearly be inappropriate. (2) Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. Separation authorities could furnish an honorable discharge when the Soldier's subsequent honest and faithful service over a greater period outweighed the disqualifying entries found in his/her record. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Paragraph 3-7b (General Discharge). A general discharge was a separation under honorable conditions and applied to those Soldiers whose military record was satisfactory, but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 applied to Soldiers who had committed an offense or offenses for which the punishment under the UCMJ included a punitive (i.e. bad conduct or dishonorable) discharge. (1) Soldiers could voluntarily request discharge once charges had been preferred; commanders were responsible for ensuring such requests were personal decisions, made without coercion, and following being granted access to counsel. The Soldier was to be given a reasonable amount of time to consult with counsel prior to making his/her decision. (2) The Soldier was required to make his/her request in writing, which certified he/she had been counseled, understood his/her rights, could receive an under other than honorable conditions character of service, and recognized the adverse nature of such a character of service. 4. The Manual for Courts-Martial in effect at the time showed violations of Article 86 (AWOL for more than 30 days) included punitive discharges among its maximum punishments. 5. AR 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, stated when a separation authority determined a Soldier was to be discharged from the Service under other than honorable conditions, the regulation required the separation authority to reduce that Soldier to the lowest enlisted grade. Board action was not required for this reduction. 6. 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. 7. 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. 8. AR 15-185 states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230000021 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1