IN THE CASE OF: BOARD DATE: 19 July 2023 DOCKET NUMBER: AR20230000663 APPLICANT REQUESTS: Upgrade of his under honorable conditions (general) discharge. Additionally, he requests personal 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), dated 24 March 1983 * Self-authored Letter * Various Theological Certificates and License 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, in effect, that he went into the military at the age of 18 after graduating from high school. After basic training, he requested to be stationed in Hawaii to further his career. After his discharge, he returned to his hometown, where he raised his 4 children. He realized that he made some mistakes in the Army and his life was in a downward spiral. In 1983, he went back to school to pick up a trade in welding and was hired at General Motors, which folded and left him jobless. He made a bad choice in dealing drugs to feed his family. He was caught and facing 144 years in prison. But God had other plans for him. He spent 11 months in jail, and he lost his mother while he was locked up. He knew at that time he had to make a change. He gave his life to Christ and joined Gods Time Ministries where he was ordained as a Pastor. He became a chaplain at the same jail house where he was housed. He continued his ministry from 1998 until he became a Bishop in 2014. He is the founder of Deliverance Church of God, Incorporated. He has since retired from work; however, he will never give up the job of ministering to God’s people. He has been married for 13 years and has 5 children and 13 grandchildren. At the age of 59, he was finally able to purchase his first home in,. He thanks God for changing him into who he is today. 3. On his DD Form 149, the applicant notes other mental health as a contributing and mitigating factor in the circumstances that resulted in his separation. 4. Having had prior honorable service in the Regular Army, the applicant enlisted in the Regular Army, on 15 May 1978. The highest grade he attained was E-5. 5. On 11 December 1980, the applicant accepted non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ), for being disrespectful to a superior commissioned officer, on or about 21 November 1980. His punishment included forfeiture of $100.00 pay for two months, 30 days restriction, and extra duty. 6. The applicant reenlisted in the Regular Army on 24 February 1981, for 4 years. 7. On 25 February 1982, the applicant accepted NJP under Article 15 of the UCMJ for dereliction in the performance of his duties, by willfully failing to report a Soldier who was in possession of marijuana, on or about 12 February 1982. His punishment included reduction in grade to E-4, forfeiture of $275.00 pay for two months, and 45 days extra duty. 8. On 10 June 1982, the applicant underwent a mental status evaluation. He self- referred himself to the Community Mental Health Activity for assistance with marital problems. He was enrolled in a six-week group counseling program for spouse abusers, which he completed on 22 July 1982. Additionally, he was psychiatrically cleared to participate in any administrative action deemed appropriate by the command. 9. On 18 November 1982, the applicant accepted NJP under Article 15 of the UCMJ, for wrongfully possessing marijuana, on or about 13 August 1982; and wrongfully using marijuana, on or about 13 August 1982. His punishment included reduction in grade to E-2 and 30 days in the Correctional Custody Facility. 10. The applicant's commander notified the applicant on 4 February 1983, that he was initiating actions to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13, for unsatisfactory performance. His commander noted that the applicant’s ability to perform duties effectively in the future, including potential for advancement or leadership, was unlikely. 11. On 11 February 1983, the applicant consulted with counsel and was advised of the basis for the contemplated separation action, the possible effects of the discharge, and the rights available to him. He waived appearance before a board of officers and indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him. He declined to submit a statement in his own behalf. 12. On 18 February 1983, the applicant's commander formally recommended his separation under the provisions of Army Regulation 635-200, Chapter 13. He further noted the applicant did not wish to present his case before a board of officers. 13. Consistent with the chain of command’s recommendations, the separation authority approved the recommended separation action on 2 March 1983, with the issuance of a DD Form 257A (General Discharge Certificate). 14. The applicant was discharged on 24 March 1983. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance. His service was characterized as under honorable conditions (general). He completed 4 years, 10 months, and 10 days of net active service this period. 15. The applicant's DD Form 214 does not note his continuous honorable active service that is required for members who honorably served their first term of enlistment (see Administrative Notes). 16. The applicant provides three certifications and a license that shows his satisfactory completion of various requirements in support of his faith. These documents are provided in their entirety for the Board’s review within the supporting documents. 17. In reaching its determination, the Board can consider the applicant's petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. 18. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his under honorable conditions (general) discharge. The applicant contends other mental health mitigates his discharge. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory: * Applicant enlisted in the Regular Army on 15 May 1978. The applicant reenlisted on 24 February 1981. * On 11 December 1980, the applicant accepted non-judicial punishment (NJP) for being disrespectful to a superior commissioned officer, on or about 21 November 1980. On 25 February 1982, the applicant accepted NJP for dereliction in the performance of his duties, by willfully failing to report a Soldier who was in possession of marijuana, on or about 12 February 1982. On 18 November 1982, the applicant accepted NJP for wrongfully possessing marijuana, on or about 13 August 1982; and wrongfully using marijuana, on or about 13 August 1982. * The applicant's commander notified the applicant on 4 February 1983, that he was initiating actions to separate him under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance. * The applicant was discharged on 24 March 1983 under AR 635-200, Chapter 13 with a under honorable conditions (general) discharge. c. Review of Available Records Including Medical: The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149, his ABCMR Record of Proceedings (ROP), DD Form 214, self-authored letter, various theological certificates and licenses, as well as documents from his service record and separation. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV) and AHLTA. Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. The applicant asserts that his misconduct was mitigated by other mental health, as he was having “issues with depression and issues with wife not being home to care for” his children when he was away. He identified this experience as a “hardship for family care.” He contends that the stress of the situation led him to making bad decisions that caused himself to be in trouble with leadership, and impacted performance. There are no electronic health records (EHR) from his time in service to review, and he did not provide any medical documentation to support his assertion of mental health concerns during this time. However, he did have some documented engagement with mental health in his service record. On 10 June 1982, the applicant underwent a mental status evaluation. He was found to have the mental capacity to understand and participate in the proceedings, was found mentally responsible, met the retention requirements of AR 40-501 - chapter 3, no psychiatric diagnosis was given, and he was cleared for any administrative action deemed appropriate by command. There was note of him having difficulties with self-control which had resulted in physical violence toward his wife. He was recommended for a six-week group counseling program for “spouse abuse,” which he completed on 22 July 1982 (per a mental evaluation note from 23 July 1982). He was seen for another mental evaluation on 30 September 1982 with his spouse, after a recent episode of spouse abuse. They were found to be experiencing significant marital discord and group counseling was recommended. The evaluation determined there was no evidence of mental defect, emotional illness or psychiatric disorder of sufficient severity to warrant disposition through medical channels. In a memo for appeal to punishment under Article 15, dated 17 December 1982, the applicant references being in the “drug program on post,” hence it appears he also engaged in some substance abuse treatment though no additional treatment notes were available. e. Per the applicant’s EHR, he started with mental health care in 2008 and has actively engaged in therapy over the past several years. The applicant is 100% service connected, though he is NOT service connected for any mental health conditions. Through the VA, the applicant has been diagnosed and treated for adjustment disorder, depression (major depressive disorder, other depressive episodes, depression not otherwise specified), insomnia, and anxiety disorder unspecified. f. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is minimal evidence to support the applicant had a condition or experience at the time of service that would mitigate his discharge. There is evidence he may have had a substance use disorder which does appear directly related to his discharge, however a substance use disorder is not typically a mitigating condition as a stand-alone diagnosis. Though, per Liberal Consideration guidance, his contention is sufficient to warrant the Board’s consideration. 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 he has a condition (depression) that mitigates his discharge. (2) Did the condition exist or experience occur during military service? Yes. The applicant contends that he experienced this condition during his time in service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. There is insufficient evidence beyond self-report that the applicant was experiencing a mental health condition. The medical records available from his time in service denied any psychiatric diagnosis, report him as fit for duty, and repeatedly document his problems with anger and domestic violence. There is some evidence he may have had a substance use disorder (as he had misconduct related to use and stated he was engaged in a substance use program). However, a substance use disorder is not typically a mitigating condition as a stand-alone diagnosis. The applicant did go on to be diagnosed with several mental health conditions, 25 or more years after discharge. In addition, none of his mental health concerns have been service connected. g. Of note, the applicant’s misconduct included some behaviors consistent with the natural history and sequelae of depression (avoidance and self-medication as seen through substance abuse, low/depressed mood which can manifest as anger and irritability as seen through acting out verbally toward an NCO). There is a nexus between these symptoms/experiences and the misconduct leading to his discharge. However, there is no nexus between domestic violence (though there’s no evidence he received punishment for this) or dereliction of duty and depression. This misconduct is not part of the natural history or sequelae of the alleged mental health condition. Depression does not typically affect one’s ability to distinguish right from wrong and act in accordance with the right. And finally, these behaviors are not sufficient to establish a history of a condition during active service. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was/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 concurred with the advising official finding minimal evidence to support the applicant had a condition or experience at the time of service that would mitigate his discharge. There is evidence he may have had a substance use disorder which does appear directly related to his discharge, however a substance use disorder is not typically a mitigating condition as a stand-alone diagnosis. The medical opine noted the applicant’s misconduct included some behaviors consistent with the natural history and sequelae of depression (avoidance and self-medication as seen through substance abuse, low/depressed mood which can manifest as anger and irritability as seen through acting out verbally toward an NCO). There is a nexus between these symptoms/experiences and the misconduct leading to his discharge. 2. The Board agreed based on the preponderance of evidence there was insufficient evidence of in-service mitigation to overcome the misconduct. The Board found the applicant’s post service achievements admirable with his work in the community and church. The Board agreed, the applicant was discharged for unsatisfactory performance and was provided an under honorable conditions (General) characterization of service. During deliberation, the Board noted according to the medical review, there is no nexus between domestic violence (though there’s no evidence he received punishment for this) or dereliction of duty and depression. This misconduct is not part of the natural history or sequelae of the alleged mental health condition. Furthermore, the Board determined that 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. However, the Board noted the applicant completed his first enlistment honorably and his records were absent the award of the Army Good Conduct Medal (1st Award). Based on this, the Board determined partial relief was warranted and granted relief to award the applicant the Army Good Conduct Medal. 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 :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: 1. In addition to the administrative notes annotated by the Analyst of Record (below the signature), the Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding entries in item 18 (Remarks): awarding him the Army Good Conduct Medal (1st Award) for exemplary service : • SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE • CONTINUOUS HONORABLE SERVICE FROM 780515 UNTIL 810223 and adding the medal to his DD Form 214 for the period ending 24 March 1983. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to an upgrade of his under honorable conditions (general) discharge. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ADMINISTRATIVE NOTE(S): N/A REFERENCES: 1. Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within three 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 three-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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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. 4. Army Regulation 635-200 sets forth the requirements for the administrative separation of enlisted personnel. The version in effect at the time provided that: a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Chapter 13 provided for separation due to unsatisfactory performance when in the commander’s judgment the individual would not become a satisfactory Soldier; retention would have an adverse impact on military discipline, good order and morale; the service member would be a disruptive influence in the future; the basis for separation would continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely. Service of Soldiers separated because of unsatisfactory performance under this regulation would be characterized as honorable or under honorable conditions. 5. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Navy Records (BCM/NR), on 3 September 2014, 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. 6. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. 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, 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) AR20230000663 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1