IN THE CASE OF: BOARD DATE: 23 August 2023 DOCKET NUMBER: AR20230001612 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions (UOTHC) characterization of service. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Self-authored statement 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: a. Since his discharge he has developed into a leader and model citizen. He has supervised and managed operations at multiple companies, trained personnel, and been responsible for their promotions. b. He had no malicious intent the night he was arrested for joyriding. He was a young man who made a mistake. He has never harmed anyone or been in possession of unauthorized property. He was not in his right mind that night. He drank way too much while under the influence of strong pain medication prescribed for a service related injury. He was wrongfully labelled as a bad Soldier. He was a young man in need of guidance from senior members. In no way did they try to rehabilitate him. They washed their hands of him, despite making it clear he wished to remain in the military. c. He recognizes the military should hold him to a higher standard. In many states, his offense would have been characterized as “joy riding.” He now carries the sort of discharge which would be received by a repeat drug user. He was an adequate Soldier, but his offense was blown out of proportion. He had no record which would warrant the worst possible administrative discharge. The post commander recommended a general discharge, but the document was not signed in his personnel file. d. On his DD Form 293, the applicant notes other mental health issues and sexual assault/harassment as issues/conditions related to his request. 3. The applicant enlisted in the Regular Army on 5 September 2006 for a 3-year and 22-week period. The highest rank he attained was private first class/E-3. 4. A Police Report, Case Number ST/1059800/2007, from the Westhessen, Germany precinct, dated 31 August 2007, shows the applicant was apprehended by the German police for driving a stolen vehicle while under the influence of alcohol. He voluntarily submitted to a breathalyzer test which returned a result of 1.61 percent (%) blood alcohol content (BAC). He was transported to the police station, processed, and released to the Military Police. 5. The applicant received an administrative reprimand from the Deputy Commanding General (DCG), Headquarters, V Corps, Heidelberg, Germany, on 21 December 2007, for driving a stolen vehicle while under the influence of alcohol and without a valid driver’s license. The DCG informed him the reprimand was an administrative action, not punishment under the Uniform Code of Military Justice, and the reprimand could be filed in his Official Military Personnel File (OMPF). The applicant could submit matters for consideration which would be considered prior to the DCG making his final filing decision. The applicant acknowledged receipt and elected to make a statement in his own behalf. The applicant stated, in effect: a. The incident was completely out of character. He had never been in trouble with military or civilian authorities before. Following the incident, he went right back to work to prove he was not a liability or a discredit to his unit. He did everything he was told and was making a conscious effort in everything he did. He was learning what it meant to become a Soldier, much like a boy becoming a man. b. The applicant’s immediate commander recommended the reprimand be filed in his local unit file. The intermediate chain of command recommended the reprimand be filed in the applicant’s OMPF, due to the serious nature of the offense. c. On 22 February 2008, the DCG directed the administrative reprimand be filed in the applicant’s OMPF. 6. The applicant was formally counseled on seven occasions between 28 March 2008 and 1 June 2008 for the following reasons: * failure to report to his appointed place of duty on two occasions * failure to obey an order/regulation on three occasions * dereliction in the performance of his duties on three occasions * failure to report to accountability and physical training (PT) formation on three occasions * insubordination on three occasions * wearing the improper uniform * being drunk on duty * incapacitation for performance of duties * disorderly conduct * non-compliance of procedural norms 7. A DA Form 3822-R (Report of Mental Status Evaluation), shows the applicant underwent a mental status evaluation on 11 July 2008. The evaluating provider noted the clinical interview indicated depressive disorder, not otherwise specified, in partial remission. However, the applicant was cleared to participate in any administrative action deemed appropriate by the command. 8. A DD Form 2807-1 (Report of Medical History), dated 23 July 2008, shows the applicant underwent surgery to install pins and correct a broken figure approximately 10 months prior. The corresponding DD Form 2808 (Report of Medical Examination) notes the applicant had a history of depression but was found medically qualified for separation. 9. The applicant was formally counseled on 26 July and 31 July 2008 for failure to report for duty and his commander’s intent to initiate separation action against him. 10. A DA Form 268 (Report to Suspend Favorable Personnel Actions [FLAG]) was initiated by the applicant’s commander on 5 August 2008, by reason of elimination. 11. On 18 August 2008, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14- 12c, by reason of commission of a serious offense. As the specific reason, his commander stated the applicant wrongfully appropriated a vehicle and operated the vehicle while drunk. The applicant acknowledged receipt of the notification on the same date. 12. A memorandum, for Commander, Headquarters, V Corps, Heidelberg, Germany, dated 27 August 2008, shows the applicant submitted a request to suspend the administrative separation proceedings. He stated, in pertinent part, he took full responsibility for his actions. He learned from his mistake and pledged to become a model Soldier. On 10 July 2008, he was punished under summary court-martial to reduction to private/E-1, forfeiture of $898.00 pay (later reduced), and 30 days of confinement with 16 days served and the remainder reduced to hard labor. He worked hard to prove to his command that he knew what he did was wrong. He financially supported his mother and sister and wanted to support his unit in Operation Iraqi Freedom. 13. A memorandum from Defense Counsel, Baumholder Legal Center, Baumholder, Germany, dated 2 September 2008, provided the following factors in support of retention of suspension of administrative separation action: a. The applicant rendered a full confession at the time of the incident leading to his separation. He also pled guilty at a summary court-martial to driving while intoxicated and wrongful appropriation. He waived a separation board as part of his pre-trial agreement. His command stated he had “shown some improvement.” b. The owner of the vehicle was reimbursed for damages by his German insurance company and there was no effect on his U.S. car insurance premiums. [The applicant] wanted to reach a settlement with the German insurance company. If he was discharged, he would not have the income to reimburse the company. In addition, it would be practically impossible for the insurance company to recoup the money if [the applicant] was returned to the U.S. and separated from the military. c. At the time of the incident, [the applicant] was only 19 years old and new to the Army. He was deeply sorry and eager to redeem himself. With the appropriate training, he would become an asset to his unit. 14. The documentation pertaining to the summary court-martial, referenced above, is not available for review in the applicant’s service record. 15. The applicant consulted with counsel on 3 September 2008. He was advised of the basis for the contemplated actions to separate him and its effects; of the rights available to him; and the effect of any action taken by him to waive his rights. He waived consideration of his case by an administrative separation board. He elected not to submit a statement in his own behalf. 16. On 11 September 2008, the applicant's immediate commander formally recommended his separation from service under the provisions of Army Regulation 635- 200, Chapter 14, by reason of commission of a serious offense. The commander stated the applicant was counseled, and through subsequent behavior, demonstrated a lack of acceptance to rehabilitative measures. The commander further recommended a UOTHC characterization of service. 17. The applicant’s intermediate commanders concurred with the recommendation. However, the brigade commander recommended an under honorable conditions (general) characterization of service due to the applicant’s age and transition from Soldier to citizen. 18. The separation authority approved the recommended separation action on 29 September 2008, and directed a UOTHC characterization of service. 19. Accordingly, the applicant was discharged on 9 October 2008. His DD Form 214 (Certificate or 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). He was credited with 2 years, 1 month, and 5 days of net active service. His service was characterized as UOTHC. 20. The Army Discharge Review Board (ADRB) reviewed the applicant's request for a discharge upgrade on 8 June 2009. After careful consideration, the Board determined he was properly and equitably discharged. His request for a change in his character of service was denied. 21. A letter from the Army Review Board Agency (ARBA), Case Management Division (CMD), dated 28 March 2023, shows CMD contacted the applicant to request medical documents to support his claim of other mental health issues. To date, no additional documentation has been received. 22. In the processing of this case, the U.S. Army Criminal Investigation Division, searched their criminal file indexes, which revealed no Criminal Investigative and/or Military Police Reports pertaining to the applicant. 23. Regulatory guidance provides when an individual is discharged under the provisions of Army Regulation 635-200, Chapter 14, a discharge UOTHC is normally appropriate; however, the separation authority may direct a general discharge if merited by the Soldier’s overall record. A characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate. 24. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. 25. MEDICAL REVIEW: a. The applicant is requesting an upgrade of his under other than honorable conditions (UOTHC) characterization of service. He contends his misconduct was related Other Mental Health Issues and Harassment. 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 5 September 2006; 2) A Police Report, Case Number ST/1059800/2007, from the Westhessen, Germany precinct, dated 31 August 2007, shows the applicant was apprehended by the German police for driving a stolen vehicle while under the influence of alcohol. He voluntarily submitted to a breathalyzer test which returned a result of 1.61 percent (%) blood alcohol content (BAC). He was transported to the police station, processed, and released to the Military Police; 3) The applicant received an administrative reprimand from the Deputy Commanding General (DCG), Headquarters, V Corps, Heidelberg, Germany, on 21 December 2007, for driving a stolen vehicle while under the influence of alcohol and without a valid driver’s license; 4) The applicant was formally counseled on seven occasions between 28 March 2008 and 1 June 2008 for various infractions, outlined in the ROP; 5) On 11 September 2008, the applicant's immediate commander formally recommended his separation from service under the provisions of Army Regulation 635-200, Chapter 14, by reason of commission of a serious offense; 6) The separation authority approved the recommended separation action on 29 September 2008, and directed a UOTHC characterization of service. Accordingly, the applicant was discharged on 9 October 2008. c. The military electronic medical record (AHLTA), VA electronic medical record (JLV), ROP, and casefiles were reviewed. A review of AHLTA showed the applicant first BH engagement on active duty occurred on 10 October 2007 at the BH Clinic in Baumholder, Germany with complaints of depression related to being “persecuted by his unit” because of pending UCMJ action. He reported feeling helpless, hopeless, having poor motivation, and being lethargic. He reported a previous history of depression that was being treated with Prozac. He was diagnosed with MDD severe with psychotic features and scheduled for follow-up. It should be noted that the “with psychotic features” qualifier appears to have been added in error, as no psychotic symptoms were reported and follow-up encounter documentation from the same provider lacked the qualifier. Encounter note dated 6 November 2007 showed the applicant presented to psychiatry at Landstuhl, Germany, after his NCO discovered the applicant had been cutting himself. The applicant reported negative side effects from Prozac contributed to his desire to cut his forearms. Upon inspection of the applicant forearms the provider noted the scars had healed and the applicant denied the cutting behavior was related to suicidal ideation or intent. The patient also reported a history of increased stress and anxiety over the past 7 months secondary to continued exposure to racial slurs, and racial gestures made by his NCO; the applicant reportedly had proof of such incidents on tape. The applicant expressed his belief that the NCO was attempting to get him psychiatrically committed at Landstuhl, so that the applicant’s words would appear uncreditable. The applicant was diagnosed with Adjustment Disorder with Depressed Mood and schedule to follow-up in 3-days. The follow-up encounter, dated 8 November 2007, showed the applicant reported feeling better and he denied any new stressors. The applicant next and final BH encounter in AHLTA occurred on 18 April 2008. Records showed the applicant presented for a 706 Board. The outcome of the 706 was not included in the encounter note. Included in the applicant’s casefile was a Report of Mental Status Evaluation, dated 11 July 2008, that showed him diagnosed with Depression NOS, in partial remission, and psychiatrically cleared for administrative separation. No other military BH records were provided for review. A review of JLV was void of any treatment history for the applicant and he does not have a service-connected disability. d. The applicant is requesting an upgrade of his UOTHC discharge to honorable. He contends his misconduct was related to Other Mental Health Issues (MDD), and Harassment. A review of the records showed the applicant was diagnosed with MDD severe, Adjustment Disorder with Depressed Mood, and Depression NOS, during service. Post-service records are void of BH related treatment history for the applicant and he does not have a service-connected disability. Records suggest the applicant had a treatment history for depression (evidenced by being prescribed an anti-depressant medication in May 2007) that predated his arrest by German authorities as well as the multiple counseling reported between 28 March 2008 and 1 June 2008. As there is a relationship between MDD and comorbid substance abuse there is a nexus between the applicant’s misconduct characterized operating a vehicle under the influence of alcohol. However, the applicant’s misconduct characterized by wrongfully appropriating a vehicle is not mitigated by his diagnosis of MDD as larceny is not natural sequela of the disorder. Even if one were to argue the applicant was under the influence of alcohol when he stole the car, this advisor finds the combined actions reach a level of egregiousness that cannot be fully mitigated by the presence of MDD. Regarding the misconduct outlined in the counseling statements between 28 March 2008 and 1 June 2008, with the exception of disobeying an order/regulation, all of the misconduct listed would be mitigated by MDD, as there is an association with MDD and avoidance, memory, isolation, lack of motivation, and alcohol misuse, thus a nexus between the instances of misconduct. However, a review of the counseling statement appeared to show the instances of failure to obey an order/regulation was not the result of the applicant failing to obey a verbal command, rather it was related to him not reporting for duty in accordance with a duty roster posted by an NCO. In this instance, the applicant’s misconduct characterized by failure to obey an order/regulation, is also mitigated as it is related to the applicant FTR, which is mitigated by avoidant behavior, lack of motivation, memory problems, and so on. Thus, under liberal guidance, the applicant’s misconduct is partially mitigated by the presence of MDD. The applicant also reported a history of harassment. Symptoms secondary to the purported harassment appeared to be stress and depressed mood and are subsumed under his diagnose of MDD. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence that the applicant had an experience or condition during his time in service that partially 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. Was diagnosed with MDD and Adjustment Disorder, with Depressed Mood, and Depression NOS in remission, during service. (2) Did the condition exist or experience occur during military service? Yes. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. A review of the records showed the applicant was diagnosed with MDD severe, Adjustment Disorder with Depressed Mood, and Depression NOS, during service. Post-service records are void of BH related treatment history for the applicant and he does not have a service-connected disability. Records suggest the applicant had a treatment history for depression (evidenced by being prescribed an anti-depressant medication in May 2007) that predated his arrest by German authorities as well as the multiple counseling reported between 28 March 2008 and 1 June 2008. As there is a relationship between MDD and comorbid substance abuse there is a nexus between the applicant’s misconduct characterized operating a vehicle under the influence of alcohol. However, the applicant’s misconduct characterized by wrongfully appropriating a vehicle is not mitigated by his diagnosis of MDD as larceny is not natural sequela of the disorder. Even if one were to argue the applicant was under the influence of alcohol when he stole the car, this advisor finds the combined actions reach a level of egregiousness that cannot be fully mitigated by the presence of MDD. Regarding the misconduct outlined in the counseling statements between 28 March 2008 and 1 June 2008, with the exception of disobeying an order/regulation, all of the misconduct listed would be mitigated by MDD, as there is an association with MDD and avoidance, memory, isolation, lack of motivation, and alcohol misuse, thus a nexus between the instances of misconduct. However, a review of the counseling statement appeared to show the instances of failure to obey an order/regulation was not the result of the applicant failing to obey a verbal command, rather it was related to him not reporting for duty in accordance with a duty roster posted by an NCO. In this instance, the applicant’s misconduct characterized by failure to obey an order/regulation, is also mitigated as it is related to the applicant FTR, which is mitigated by avoidant behavior, lack of motivation, memory problems, and so on. Thus, under liberal guidance, the applicant’s misconduct is partially mitigated by the presence of MDD. The applicant also reported a history of harassment. Symptoms secondary to the purported harassment appeared to be stress and depressed mood and are subsumed under his diagnose of MDD. 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 considered the advising official finding sufficient evidence that the applicant had an experience or condition during his time in service that partially mitigated his misconduct. The Board noted the advisory opine that under liberal guidance, the applicant’s misconduct is partially mitigated by the presence of MDD. The applicant also reported a history of harassment. Symptoms secondary to the purported harassment appeared to be stress and depressed mood and are subsumed under his diagnose of MDD. As there is a relationship between MDD and comorbid substance abuse there is a nexus between the applicant’s misconduct characterized operating a vehicle under the influence of alcohol. 2. The Board agreed the applicant was very remorseful for his misconduct and his actions that led to his discharge and attempted to redeem himself by being a stellar Soldier. Evidence shows his commander recommendation was separation with a general discharge based on aged and first offense. However, the applicant’s misconduct characterized by wrongfully appropriating a vehicle is not mitigated by his diagnosis of MDD as larceny is not natural sequela of the disorder. The Board agreed with the opine, even if one were to argue the applicant was under the influence of alcohol when he stole the car, this advisor finds the combined actions reach a level of egregiousness that cannot be fully mitigated by the presence of MDD. The Board noted, during deliberation, the applicant provided insufficient evidence of post-service honorable conduct that might have mitigated the discharge characterization. Additionally, the Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh 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. Therefore, relief was denied. ? 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, 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. Section 1556 of Title 10, U.S. 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. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. Paragraph 3-7b states 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 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline). Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter; however, the separation authority may direct a general discharge if merited by the Soldier’s overall record. 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 (DRB) and Boards for Correction of Military/Naval Records (BCM/NR) 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; 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 sexual assault or sexual harassment was unreported, or 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. 5. 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) AR20230001612 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1