IN THE CASE OF: BOARD DATE: 28 September 2023 DOCKET NUMBER: AR20230002457 APPLICANT REQUESTS: his under honorable conditions (general) discharge be upgraded to honorable. 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) in lieu of the DD Form 149 * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 had trouble adjusting to a new unit in Germany. He would like his discharge changed to honorable because he received the Army Commendation Medal and the Army Good Conduct Medal. One incident should not define a Soldier and he apologized for his actions. He had mental health and dependency issues back then and did not know how to ask for help. He is now receiving assistance from the Department of Veterans Affairs (VA) and has a case manager to assist him with better coping skills. The applicant marked “other mental health” on his DD Form 149 as mitigating factors in the circumstances that resulted in his separation. 3. With a moral waiver, the applicant enlisted in the Regular Army on 27 May 1993, and he completed training with award of the military occupational specialty 63B (Light Wheeled Vehicle Mechanic). The highest grade he held was specialist E-4. 4. The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates for the indicated offenses: * 8 July 1996 for assault on a sergeant by striking him in the face * 3 September 1996, for a positive urinalysis test of 9 August 1996, his punishment included reduction to E-1 5. The applicant's immediate commander notified the applicant of his intent to initiate actions to separate him under Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, paragraph 14- 12c) for commission of a serious offence. His commander noted the specific reasons as using illegal drugs, assaulting another soldier, and disrespecting a commissioned officer. 6. On 2 October 1996, after consulting with legal counsel, he acknowledged: * the rights available to him and the effect of waiving said rights * he may encounter substantial prejudice in civilian life if a general discharge under other than honorable conditions is issued to him * he may be ineligible for many or all benefits as a Veteran under both Federal and State laws * he may apply to the Army Discharge Review Board or the ABCMR for upgrading * he is ineligible to apply for enlistment in the Army for 2 years after discharge * he elected to submit matters for consideration 7. The applicant submitted a statement for consideration which stated in part: a. He requested consideration for an honorable discharge since he had received an Army Commendation Medal and was due for an Army Good Conduct Medal, which he had not received after 3 years without incident at his duty station. Additionally, he received a Summarized Article 15 on 8 July 1996, for one violation of Article 128, UCMJ, assault; however, the Summarized Article 15 did not state that the victim sexually assaulted his spouse. During the Article 15 proceedings, the Commander acknowledged the indecent nature of the act toward his wife by stating, "I would have done the same thing, especially considering your spouse was nine months pregnant." He still received the Article 15, but felt his actions were justified. b. The false allegations that he was following a higher ranking officer off post and/or threatening him he believes was supported by unfounded sworn statements. He did not understand why it was allowed to be used against him since he had no negative counseling statements from his leaders and he further noted it was a feeble attempt to beef up his separation packet. c. In regard to the incident which led to the Field Grade Article 15 for wrongful use of marijuana, He was totally innocent. He was mysteriously called in on a Saturday morning to participate in what was supposed to be a 100% urinalysis. He reported for the urinalysis as directed; however, he noted that there was an extremely limited turn out. Only 15 soldiers showed up and within 90 days from his expiration for term of service (ETS), he came up positive. This was a total shock to him. He had never used marijuana and believes he was set up, but he elected not to fight the charges because he had a job lined up and did not want to risk the chance of having to remain beyond his ETS. d. The applicant further related that he and his wife were ready to leave after they had received numerous threatening phone calls, his vehicle had been vandalized, his home had three attempted break-ins, one being successful with his home being ransacked. All of these incidents were reported to the military police yet the only solution provided was to find a home somewhere else at their own expense. He further indicated he and his wife were subjected to mental abuse from his command and it had been swept under the carpet. He was requesting an honorable discharge to maintain benefits associated with his enlistment to provide for his family. 8. The immediate commander initiated separation action against the applicant for commission of a serious offense. He recommended that his period of service be characterized as general, under honorable conditions. The intermediate commander recommended approval. 9. On 11 October 1996, consistent with the chain of command recommendations, the separation authority approved the discharge recommendation for immediate separation under the provisions of Army Regulation 635-200, para 14-12c for commission of a serious offense. He would be issued a general, under honorable conditions discharge. 10. The applicant was discharged on 30 October 1996, in the pay grade of E-1 with a general, under honorable conditions characterization of service. His DD Form 214 shows he completed 3 years, 5 months, and 4 days of active service. He was assigned separation code JKQ and the narrative reason for separation listed as “misconduct.” It also shows he was awarded or authorized: * Army Commendation Medal * Army Good Conduct Medal * National Defense Service Medal * Army Service Ribbon * Marksman Qualification Badge with Rifle Bar * Driver and Mechanic Badge with Driver-W and Mechanic Bar 11. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 12. MEDICAL REVIEW: a. Background: The applicant is requesting his under honorable conditions (general) discharge be upgraded to an honorable discharge. The applicant asserts other mental health mitigates hid 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: * The applicant enlisted in the Regular Army on 27 May 1993, with a moral waiver. * The applicant accepted nonjudicial punishment (NJP), on the following dates for the indicated offenses: 8 July 1996 for assault on a sergeant by striking him in the face; and 3 September 1996, for a positive urinalysis test of 9 August 1996. * The applicant's immediate commander notified the applicant of his intent to initiate actions to separate him under AR 635-200, Chapter 14, paragraph 14- 12c, for commission of a serious offence. His commander noted the specific reasons as: using illegal drugs, assaulting another soldier, and disrespecting a commissioned officer. * The applicant was discharged 30 October 1996 with a general, under honorable conditions characterization of service. 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 293, 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 asserts that mental health and dependency issues mitigate his misconduct. In a letter written at the time of his separation process, the applicant asked for consideration of an honorable discharge given his service (medals) and the fact that the article 15 addressing his assault did not mention that the “victim” had sexually assault his spouse (who at the time was 9 months pregnant). He reported that the command at the time acknowledged his actions were justified but still gave the Article 15. He also argued against the allegation of following or threatening a higher-ranking officer, stating they were false, with no negative counseling statements to back up that this was happening. At the time he also asserted he had not used marijuana and was shocked by the results. He also asserted to numerous break-ins at their home on post, and that he had his wife had been subject to emotional abuse by his command. e. The applicant’s time in service predates use of electronic health records (EHR) by the Army, hence no EHRs are available for review. His service record and supporting documents did not contain his service treatment records (STR). The mental status exam and medical evaluation typical of chapter separations also were not present in his file. No other records were provided to substantiate his assertion of mental health concerns nor dependency issues. The applicant did test positive for marijuana which may indicate he had a substance use problem at the time of service. However, at that time he adamantly denied he had used marijuana. f. Per the applicant’s VA EHR, he has actively and consistently engaged with VA care since 2001. The applicant is not service connected for any mental health conditions. He initially began engaging in care related to mental health in 2002, in addressing lack of housing and substance use issues, and he continues with care through the present. He has numerous diagnoses to include several substance use disorders (alcohol, cannabis, cocaine, opioids), depression, bipolar disorder, PTSD, personality disorder not otherwise specified (NOS), mood disorder NOS, anxiety disorder NOS, as well as other psychosocial diagnoses such as lack of housing, homelessness, legal circumstances, occupational circumstances or maladjustment, problems related to employment, etc. In a biopsychosocial evaluation completed 22 January 2020 (most recent admission to residential treatment), he noted that his trauma is related to childhood physical abuse and sexual assault that he experienced in the 1990s (unrelated to service). He has engaged in therapy, medication management, group therapy, case management, residential treatment and inpatient/detoxification admissions, with at least 27 admissions between residential and inpatient care. g. Based on the available information, it is the opinion of the ARBA BH Advisor that there is insufficient evidence, outside of self-report, to support the applicant had a mitigating condition at the time his misconduct. He has since been diagnosed with numerous potentially mitigating conditions; however, all evidence of diagnoses came years after his discharge and he is not service connected. 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 mitigating conditions. (2) Did the condition exist or experience occur during military service? Yes, the applicant asserts the conditions were present during his time in service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The applicant asserts that mental health and “dependency”/substance use mitigate his misconduct, and per Liberal Consideration, his contention is sufficient to warrant the boards consideration. No medical records are available from his time in service to substantiate his assertion. The applicant describes numerous potentially traumatizing events occurring during his time in service (break-ins and harassment, to include by his commander), however much of this appeared to take place after his misconduct. His medical record since discharge shows severe and persistent mental health concerns and significant polysubstance use. While he is not service connected, his record also does not reflect that he has ever been evaluated (no compensation and pension on record). His medical record through the VA clearly articulates substance use issues that predate his time in the service, though seemingly worsened during or shortly after his discharge. However, substance use disorders, as standalone conditions, are not considered mitigating. Of note, substance use is a self-medicating behavior consistent with numerous mental health concerns. However, assaulting another soldier is not conduct typically mitigated by mental health conditions. In summary, there is insufficient evidence the applicant had a mitigating condition at the time of his misconduct. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's mental health claim and the review and conclusions of the ARBA BH Advisor. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board found insufficient evidence of in- service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by a mental health condition. Based on a preponderance of evidence, the Board determined 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 :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, 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. 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 Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 (Separation for Misconduct) 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. d. Paragraph 14-12c (Commission of a Serious Offense) applied to Soldiers who committed a serious military or civilian offense, when required by the specific circumstances warrant separation and a punitive discharge was, or could be authorized for that same or relatively similar offense under the UCMJ. 4. 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. 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 based on 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. 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.) AR20230002457 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1