IN THE CASE OF:   
 
  BOARD DATE: 15 August 2023 
 
  DOCKET NUMBER: AR20230000939 
 
 
APPLICANT REQUESTS:  Upgrade of his under honorable conditions (general) discharge. 
 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record) 
 
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 would like an upgrade so that he could request education benefits to better his life. He did not understand the process and a friend told him he could request relief and maybe get an extension of education benefits. 
 
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.  The applicant enlisted in the Regular Army, on 25 August 2005. Upon completion of training, he was awarded military occupational specialty 63B (Wheeled Vehicle Mechanic). 
 
5.  The applicant received formal counseling on the following dates/for: 
 
• 1 March 2006, for not being at his appointed place of duty at the correct time 

• 3 March 2006, for wrongful use/possession of marijuana 

• 13 March 2006, for not being at his appointed place of duty at the correct time 


 
6.  On 24 March 2006, the applicant underwent a mental status evaluation. He was psychiatrically cleared to participate in any administrative action deemed appropriate by the command. 
7.  Court-martial charges were preferred against the applicant on 13 April 2006, for violations of the Uniform Code of Military Justice. His DD Form 458 (Charge Sheet) shows he was charged with one specification of wrongful use of marijuana on or about 13 February 2006. 
 
8.  Before a summary court-martial at Fort Lewis, WA on 5 May 2006, the applicant was found guilty of one specification of wrongful use of marijuana. The court sentenced him to reduction in grade to E-1, forfeiture of $854.00 pay, and confinement for 30 days. The sentence was approved. 
 
9.  The applicant's immediate commander notified the applicant on 23 May 3006, that he was initiating actions to separate him under the provisions of Army Regulation  
635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c for commission of a serious offense. His commander noted his wrongful use of marijuana. 
 
10.  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 indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him and he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result. He declined to submit a statement in his own behalf. 
 
11.  The applicant's immediate commander formally recommended his separation under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense. 
 
12.  Consistent with the chain of command’s recommendations, the separation authority approved the recommended separation action on 18 July 2006, with the issuance of a General Discharge Certificate. 
 
13.  The applicant was discharged on 28 July 2006. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (serious offense). His service was characterized as under honorable conditions (general). He completed 11 months, and 4 days of net active service this period.  
 
14.  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. 
 
 
 
 
15.  MEDICAL REVIEW: 
 
Medical Advisor: MAJ Stephanie N. Pagano, Psy.D., ABPP (Licensed Psychologist) 
    a.  Background: The applicant is requesting an upgrade of his under honorable conditions (general) discharge. The applicant asserts other mental health mitigated his discharge. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a brief summary of information pertinent to this advisory:  
 
• The applicant enlisted in the Regular Army on 25 August 2005.  

• The applicant received formal counseling on the following dates/for: 

• 1 March 2006, for not being at his appointed place of duty at the correct time 

• 3 March 2006, for wrongful use/possession of marijuana 

• 13 March 2006, for not being at his appointed place of duty at the correct time 

• Court-martial charges were preferred against the applicant on 13 April 2006 for wrongful use of marijuana on or about 13 February 2006. On 5 May 2006 the applicant was found guilty of one specification of wrongful use of marijuana. 


 
    b.  The applicant was discharged on 28 July 2006 under AR 635-200, paragraph 14-12c, for misconduct (serious offense), with an under honorable conditions (general) discharge. 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, ABCMR Record of Proceedings (ROP), 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). Lack of citation or discussion in this section should not be interpreted as lack of consideration. 
 
    c.  The applicant asserts that other mental health mitigates his discharge. Per review of his supporting documents and electronic health record (EHR), on 24 March 2006, the applicant underwent a mental status exam (MSE). He was found mentally responsible, was able to distinguish right from wrong, was able to adhere to the right, had the mental capacity to understand and participate in separation proceedings, met medical retention standards per AR 40-501 - chap 3, and was cleared for any administrative action deemed appropriate by command. While in confinement for 30 days, the applicant did have an initial mental health intake on 15 May 2006 and had to attend a mandatory “Impact of Crime on Victims” course required of all inmates. During his intake, he reported that he wanted out of the Army, but command was not supportive of this, so he used marijuana to get kicked out. During the intake, he denied any mental health treatment history and denied any current mental health complaints. No diagnosis was found during his evaluation. His ERH indicates the applicant has been diagnosed with cannabis abuse (and cannabis related disorder), personality disorder, and occupational 
problems. It is important to note that the personality disorder diagnosis came from a physician who was seeing the applicant for a labs/hepatitis C follow up appointment and did not document any psychiatric evaluation, nor justification for the diagnosis. This advisor does not view this as an accurate diagnosis, though, regardless personality disorders are not considered mitigating conditions. Though diagnoses were given, the applicant did not engage in any mental health care outside of his MSE and confinement initial intake. There is also no indication that he was referred to Army Substance Abuse Program (ASAP) after his substance related misconduct. The applicant did not provide any additional medical documentation to corroborate his assertion of a mitigating mental health condition during his time in service.  
 
    d.  Per the applicant’s EHR, there is no indication he has ever received care from the VA, nor is there any indication he is service connected. The applicant did not provide any medical or mental health records supporting his assertion. It is the opinion of the Agency Behavioral Health Advisor that there is insufficient evidence that the applicant had a mitigating condition during his time in service. However, 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 contends he had mitigating conditions (“other mental health”).    
    (2)  Did the condition exist, or experience occur during military service? Yes. The applicant does assert a mitigating condition was present 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 ever experienced any mitigating conditions. The applicant was diagnosed with cannabis abuse at the time of misconduct; however a standalone substance use diagnosis is not a mitigatable condition. In addition, the applicant participated in several thorough mandatory psychological evaluations and no mitigating mental health diagnosis was found. There is also no evidence he has engaged in mental health care since his discharge, and the applicant has no record of a service connection. The applicant did not specify what “other mental health” condition or disorder may have impacted his discharge; hence it is difficult to opine on whether or not his misconduct could be mitigated by his asserted condition(s). Those with mental health conditions do at times try to self-medicate symptoms through substance use. But his misconduct alone is not sufficient to establish history of a condition during active service. That said, the applicant contends he was experiencing a mental health condition that mitigated his misconduct, and per Liberal Consideration his contention is sufficient to warrant the board’s consideration.  
 
 
BOARD DISCUSSION: 
 
After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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 due to Misconduct, following his wrongful use of illegal drugs and conviction by a court-martial. The Board reviewed and was persuaded by the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided insufficient evidence of post-service achievements, letters of reference/support, or evidence of a persuasive nature 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 
 
xx: xx: xx: 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. 
 
  8/15/2023

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. 
 
 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 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. It states that action will be initiated to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or unlikely to succeed. Paragraph 14-12c (Commission of a Serious Offense) applied to commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense. First time offenders below the grade of sergeant, and with less than 3 years of total military service, may be processed for separation as appropriate. 
 
4.  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. 
 
5.  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.  
 
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, 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//