IN THE CASE OF: BOARD DATE: 11 August 2023 DOCKET NUMBER: AR20230001046 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions characterization of service and a 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), 22 October 2022 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 he would like an upgrade of his characterization of service for his disability rating. He was diagnosed with being aggressive, bipolar, and post- traumatic stress disorder (PTSD) from Operation Desert Storm by the Department of Veteran Affairs (VA) hospital in Memphis, TN. Further, the applicant checked a box on his application acknowledging his request his related to Other Mental Health. 3. The applicant s record shows: a. He previously served in the regular Army from 6 November 1985 to 4 November 1988. His DD Form 214 (Certificate of Release or Discharge From Active Duty) shows he was honorably released from active duty on 4 November 1988. b. He previously served in the Tennessee Army National Guard from 16 November 1988 to an unknown date. His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows an illegible discharge date (appears to be 1 February 1990), for unsatisfactory participant, and his service was characterized as Under Honorable Conditions (General). c. He enlisted in the Regular Army on 10 July 1989. An enlistment document is not available. He held military occupational specialty 11C, Indirect Fire Infantryman. He served in Saudi Arabia/Southwest Asia from 12 October 1990 to 8 March 1991. 4. On 27 August 1991, the applicant accepted company grade non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty on 3 separate occasions, between on or about 16 August 1991 to on or about 20 August 1991. No punishment was imposed by the applicant s commander. 5. On 25 February 1992, the applicant accepted company grade NJP under the provisions of Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty, on or about 10 February 1992. His punishment consisted of reduction to private first class (PFC)/E-3, forfeiture of $260.00 pay per month for 1 month (suspended until 1 September 1992), 14 days extra duty and 14 days restriction. 6. The applicant s record contains two DA Forms 4187-E (Personnel Action), which show the below changes to his duty status: * Present for Duty (PDY) to Absent Without Leave (AWOL) 4 March 1992 * AWOL to PDY 11 March 1992 7. The applicant s separation packet is not available for the Board to review. However, the applicant's DD Form 214 shows he was discharged on 27 April 1992, under the provisions of Army Regulation 635-200 (Personnel Separation Enlisted Personnel), paragraph 14-12b, for pattern of misconduct, in the rank/grade of Private (PV1)/E-1, and his service was characterized as under other than honorable conditions. He was assigned Separation Code JFM and Reentry Code 3. He completed 2 years, 9 months, and 27 days of net active service this period with lost time from 4 March 1992 to 10 March 1992. Additionally, his DD Form 214 list the following decorations and awards. * Army Commendation Medal * Army Good Conduct Medal * National Defense Service Medal * Army Service Ribbon * Overseas Service Ribbon * Combat Infantryman Badge * Parachutist Badge * Marksmanship Expert Rifle Badge (Rifle) * Marksmanship Sharpshooter Badge (Grenade) * Marksmanship Marksman Badge (Mortar) * Southwest Asia Service Medal with 3 Bronze Service Stars * Kuwait Liberation Medal 8. There is no indication the applicant applied to the Army Discharge Review Board for review of his discharge within that board s 15-year statute of limitations. 9. Discharges under the provisions of Army Regulation 635-200, chapter 14 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. 10. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. 11. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under other than honorable conditions (UOTHC) characterization of service to honorable. 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 10 July 1989. His DD 214 showed he served in Southwest Asia from 12 October 1990 to 8 March 1991; 2) The applicant accepted NJP under provisions of the UCMJ on 27 August 1991 for failing to go to his prescribed place of duty between on or about 16 August 20 August 1991, and accepted NJP on 23 February 1992 for failing to go at the time prescribed to his place of duty on or about 10 February 1992; 3) The applicant was reported AWOL from on or about 4 march 1992 to on or about 10 March 1992; 4) The applicant s separation packet is not available for the Board to review. However, the applicant's DD Form 214 shows he was discharged on 27 April 1992, under the provisions of Army Regulation 635-200, paragraph 14-12b, for pattern of misconduct, and his service was characterized as under other than honorable conditions. c. The VA electronic medical record (JLV), ROP, and casefiles were reviewed. The military medical record (AHLTA) was not reviewed as it was not in use during the applicant s time in service. No military BH records were provided for review. A review of JVL showed the applicant 40 percent SC for physical disabilities. He does not have a BH-related SC disability. Records suggest the applicant s first BH treatment encounter with the VA occurred on 1 February 2010 at the Memphis, TN, VA. The applicant reported symptoms of rage, bad temper, being easily upset, and over-reacting since age 7. He reported a history of picking fights, during childhood, and at age 13 being referred for a psychiatric evaluation due to striking a teacher. After engaging in karate and other sports he was reportedly able to channel his anger and the behavioral issues resolved. He reported his oppositional and defiant behavior reemerged during the military, resulting in him being separated for misconduct. The applicant reported a history of DV, subsequent to catching his wife in bed with another man. The DV reportedly resulted in the applicant being jailed for 1.5 years for aggravated assault and eventual divorce. He stated he remarried in 2007 and was seen by his wife s PCP due to depressive mood. He was reportedly diagnosed with Bipolar II Disorder and prescribed an anti-depressant, that he stated was effective. The PCP had characterized the applicant s manic behavior by decreased need for sleep, poor concentration, increased goal directed behavior, occasional spending sprees, and hypersexuality or grandiosity. The provider conducting the current assessment noted the applicant did not meet criteria for Bipolar II Disorder. The applicant was instead diagnosed with MDD single episode, in remission, Intermittent Explosive Disorder, and Alcohol Abuse in sustained remission. The applicant was prescribed psychotropic medication and scheduled for outpatient BH care. d. Encounter note dated 22 April 2010 showed the applicant presented for follow-up and reported no problems with depression, alcohol use or explosive behavior. His only reported problem was an increase in weight. BH encounter through 3 July 2012 reflected the applicant continued reporting of great efficacy of medication in treating his symptoms. Encounter note dated 5 November 2013 showed the applicant presented with concerns of memory problems for the past 4 months. He was referred for a Neuropsychological Evaluation, which he attended on 4 December 2013. On 11 February 2014 the applicant was informed that the results of his Neuropsychological Evaluation showed no objective impairments. Encounter note dated 29 April 2014 showed the applicant reported mood changes over the past two months, characterized by becoming irritable and short-tempered. Mood changes were reportedly secondary to partner relational problems. Medication reconciliation was completed, and the applicant was instructed to continue outpatient treatment and consider marital therapy. Encounter note dated 14 May 2014 showed the applicant once again reported symptom improvement and reported improvements in his marriage. The applicant was next seen on 8 December 2017 whereby he reported stress related to memory of his involvement in Operation Desert Shield/Desert Storm to include engagement during firefights and exposure to burning oil fields. This appears to be the first time during treatment the applicant endorsed trauma-related symptoms. He was diagnosed with a rule-out of Unspecified Trauma and Stress Related Disorder. Encounter note dated 2 March 2021 showed the applicant continued reporting stress related to combat exposure. During the encounter the applicant reported witnessing dismembered bodies, was made to bury bodies, engaged in hand-to-hand combat, and witness considerable violence. He was diagnosed with Unspecified Trauma Related Disorder. Records showed the applicant continued in outpatient BH treatment through 9 June 2022. e. The applicant requests upgrade of his UOTHC discharge to honorable. He contends his misconduct was related to Other Mental Health Disorder. A review of the records was void of any BH diagnosis or treatment during service. Post-service records showed the applicant diagnosed with multiple BH diagnoses by VA providers; however, only Unspecified Trauma Related Disorder appeared associated to military service. The diagnosis was deemed secondary to the applicant s exposure to combat during his deployment to Iraq. It should be noted that the applicant is not service-connected for the disorder. It should be further noted that this advisor has reservations with the determination the applicant had a trauma related disorder during service, given records between April 2010 and November 2017 consistently showed the applicant screening negative for PTSD and the records appearing consistently void of trauma related discussion. However, in line with liberal guidance, this advisor will accept the VA provider s diagnosis and associated relationship to service as being accurate. Therefore, given the relationship between Unspecified Trauma Related Disorder and avoidant behavior, there is a nexus between the applicant s diagnosis and his misconduct characterized by AWOL and Failure to Report (FTR), such that the misconduct was mitigated by the disorder. f. Based on the available information, it is the opinion of the Agency BH Advisor that the applicant had an experience or condition during his time in service that mitigated his misconduct. 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 is diagnosed with Unspecified Trauma-Related Disorder, by a VA provider (2) Did the condition exist or experience occur during military service? Yes. Symptoms onset associated with combat tour in Iraq. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. A review of the records was void of any BH diagnosis or treatment during service. Post- service records showed the applicant diagnosed with multiple BH diagnoses by VA providers; however, only Unspecified Trauma Related Disorder appeared associated to military service. The diagnosis was deemed secondary to the applicant s exposure to combat during his deployment to Iraq. It should be noted that the applicant is not service-connected for the disorder. It should be further noted that this advisor has reservations with the determination the applicant had a trauma related disorder during service, given records between April 2010 and November 2017 consistently showed the applicant screening negative for PTSD and the records appearing consistently void of trauma related discussion. However, in line with liberal guidance, this advisor will accept the VA provider s diagnosis and associated relationship to service as being accurate. Therefore, given the relationship between Unspecified Trauma Related Disorder and avoidant behavior, there is a nexus between the applicant s diagnosis and his misconduct characterized by AWOL and FTR, such that the misconduct was mitigated by the disorder. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found the relief was warranted. The Board carefully considered the applicant s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board noted the applicant s statement referenced numerous behavioral health diagnoses from the Tennessee Department of Veteran Affairs. As the Army and VA operate under separate authorities, variances in outcomes do not necessarily reflect an error. However, in this case, the Board agreed given his diagnoses, there is sufficient evidence of mitigating circumstances. Based on the preponderance of evidence available for review, the Board determined the evidence presented sufficient to warrant a recommendation for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :xx :xx :xx GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period ending 27 April 1992 showing his character of service as Honorable. 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. Army Regulation 635-200, in effect at the time, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Chapter 3, section II (Type of Characterization or Description) stated the following types of characterization of service or description of service are authorized: separation with characterization of service as Honorable, General (under honorable conditions), or Under Other Than Honorable Conditions, and Uncharacterized (for entry level status) are authorized. These separation types will be used in appropriate circumstances unless limited by the reason for separation. (1) Paragraph 3-7a stated an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier'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. (2) Paragraph 3-7b stated 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. b. Chapter 14 (Separation for Misconduct) established 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. Paragraph 14-12b, states Soldiers are subject to action per this section for a pattern of misconduct consisting of (1) Discreditable involvement with civil or military authorities. (2) Conduct prejudicial to good order and discipline. Discreditable conduct and conduct prejudicial to good order, and discipline includes conduct violative of the accepted standards, of personal conduct found 'in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army. 4. 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. 5. 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. 6. 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. 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. 7. 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. 8. Army Regulation 15-185, paragraph 2-11 states applicants do not have the right to a hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230001046 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1