IN THE CASE OF: 
 
  BOARD DATE: 19 September 2023 
 
  DOCKET NUMBER: AR20230002441 
 
 
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 at the time of his discharge, he was suffering from undiagnosed stress and anxiety. An upgrade to an honorable discharge would possibly allow him to use a Veterans Affairs hospital. 
 
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.  On 16 February 1989, the applicant enlisted in the Regular Army. Upon completion of training, he was awarded military occupational specialty 94F (Hospital Food Service Specialist). 
 
5.  The applicant received formal counseling on the following dates/for: 
 
• 9 May 1989, failing the Army Physical Readiness Test  

• 25 October 1989, failing the Army Physical Readiness Test 

• 22 February 1990, exceeding Army weight standards 

• 13 March 1990, failing to report to physical formation 

• 16 March 1990, being late for duty 

• 27 March 1990, being late for duty 


6.  A Military Police Report shows that on 5 April 1990, the applicant was cited for assault consummated by battery involving his spouse. He received further counseling and was referred for a mental status evaluation.  
 
7.  A Military Police Report shows that on 9 July 1990, the applicant was cited a second time for assault consummated by battery involving his spouse. 
 
8.  The applicant's commander notified him on 24 July 1990 that he was initiating actions to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for misconduct. As the specific reasons, his commander cited the applicant’s second offense of assault consummated by battery, and substantiated spouse abuse. 
 
9.  On 26 July 1990, the applicant acknowledged that he had been advised by counsel of 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. He declined to submit a statement in his own behalf. 
 
10.  On 31 July 1990, the applicant's commander formally recommended his separation under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct. 
 
11.  Consistent with the chain of command's recommendation, the separation authority approved the recommended discharge on 10 August 1990, and directed a service characterization of under honorable conditions (general). 
 
12.  The applicant was discharged on 7 September 1990. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 14, for misconduct. His service was characterized as under honorable conditions (general). He completed 1 year, 6 months, and 22 days of net active service this period. 
 
13.  On 31 March 2023, the ABCMR staff requested that the applicant provide medical documents to support his claim of mental health issues as a contributing factor in the circumstances that resulted in his discharge. He did not respond. 
 
14.  In reaching its determination, the Board can consider the applicant's petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 
 
15.  MEDICAL REVIEW: 
 
    a.  Background: The applicant is requesting an upgrade of his under honorable conditions (general) discharge. The applicant indicated undiagnosed stress and anxiety (“other mental health”) as mitigating factors in 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 16 February 1989. 

• The applicant received formal counseling for numerous events between 9 May 1989 and 27 March 1990, to include for failing the Army Physical Readiness Test (x2), exceeding Army weight standards, failing to report to physical formation and being late for duty (x2).  

• A Military Police Report shows that on 5 April 1990, the applicant was cited for assault consummated by battery involving his spouse. He received further counseling and was referred for a mental status evaluation (MSE). 

• A Military Police Report shows that on 9 July 1990, the applicant was cited a second time for assault consummated by battery involving his spouse. 

• The applicant's commander notified him on 24 July 1990 that he was initiating actions to separate him under AR 635-200, paragraph 14-12b, for misconduct. As the specific reasons, his commander cited the applicant’s second offense of assault consummated by battery, and substantiated spouse abuse. 

• On 7 September 1990, the applicant was discharged under AR 635-200, paragraph 14-12b, by misconduct, with an 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, 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.  
 
    d.  The applicant asserted that he had undiagnosed stress and anxiety during his time in service that mitigates his discharge. In addition, he stated that an upgrade would allow him to use the VA. The applicant’s time in service predates use of electronic health records (EHR) by the Army, hence no EHRs are available for review. A general counseling statement from 1 May 1990 indicates that after he had a domestic disturbance at his home on 5 April 1990, Family Advocacy Program (FAP) and social services were involved/investigating, and the applicant was being referred to Community Mental Health for an MSE. Additional evidence (recommendations from FAP) indicate he was recommended to attend Domestic Conflict Containment Program 
and Systematic Training for Effective Parenting classes. There is no indication if he completed these treatments/classes prior to his discharge. His service record and supporting documents did not contain his service treatment records (STRs) or medical exams. The applicant was seen for an MSE on 15 August 1990 (it was signed and dated), however the document is blank and does not indicate any impressions, remarks or results. His separation packet has “n/a” listed next to medical exam and MSE, which does not appear consistent with typical practices.   
    e.  Per the applicant’s VA EHR, he is not service connected. He has not been engaged in any mental health care through the VA and he holds no mental health diagnoses with the VA. Through review of JLV, this applicant did have “Community Health Summaries and Documents” available, though there was no record of a mental health diagnoses, nor mental health records. No other medical records were provided to substantiate that the applicant had undiagnosed mental health concerns during his time in service, nor that he has experienced any mental health concerns since his separation. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is insufficient evidence to support the applicant had a condition or experience at the time of service that mitigated his discharge.  
Kurta Questions: 
 
    (1)  Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes, applicant asserts other mental health conditions (stress and anxiety) are related to his request for an upgrade to his discharge.  
 
    (2)  Did the condition exist or experience occur during military service? Yes, the applicant asserts that these conditions were present, though undiagnosed, during his time in service.     
 
    (3)  Does the condition or experience actually excuse or mitigate the discharge? No. The applicant asserted undiagnosed anxiety and stress were related to his request for upgrade but did not provide any other information regarding this assertion. There is no evidence beyond self-report that the applicant was experiencing a mitigating condition during his time in service. There is no evidence that the applicant has ever been diagnosed or treated for any mental health concerns since his time in service. Of note, two offenses of “Assault Consummated by Battery: Substantiated Spouse Abuse” is not part of the natural history or sequelae of his asserted mental health conditions (stress, anxiety) and does not affect one’s ability to distinguish right from wrong and act in accordance with the right.  In addition, his behaviors of spouse abuse are not sufficient to establish a history of a condition during active service. However, per Liberal Consideration guidance, his contention is sufficient for 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 applicant was discharged for misconduct – commission of a serious offense (assault/spouse abuse). The Board reviewed, was persuaded by, and concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. Additionally, the applicant provided no evidence of a persuasive nature of post-service achievements or letters of reference 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. 
 
  9/19/2023

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.  Section 1556 of Title 10, U.S. Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the 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. 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.  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, paragraph 14-12b provides for the separation of Soldiers when they have a pattern of misconduct involving acts of discreditable involvement with civil or military authorities and conduct which is prejudicial to good order and discipline. The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of Chapter 14.  
  
(1)  The separation authority may direct a general discharge if such is merited 


by the Soldier’s overall record.  
  
(2) Characterization of service as honorable is not authorized unless the 


Soldier’s record is otherwise so meritorious that any other characterization clearly would be inappropriate. A characterization of honorable may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is delegated. 
 
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//