IN THE CASE OF:  
 
  BOARD DATE: 14 September 2023 
 
  DOCKET NUMBER: AR20230002491 
 
 
APPLICANT REQUESTS: reconsideration of his previous request for an upgrade to his character of service from under honorable conditions (general) to honorable. 
 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
 
• DD Form 149 (Application for Correction of Military Record), 26 October 2022 

• Rating Decision, Department of Veteran Affairs, 15 March 2022 


 
FACTS: 
 
1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20190000443 on 30 April 2019. 
 
2.  The applicant states, in effect, that due to new evidence of mental health diagnosis and Department of Veteran Affair's rating, his character of service should be upgraded from general, under honorable conditions to honorable. The applicant marked “Other Mental Health” on his application for an upgrade.  
 
3.  The applicant enlisted in the Regular Army on 10 August 1988 as a Patient Administration Specialist (71G). He was assigned to Fort Bragg, NC 
 
4.  On 13 April 1990, the applicant received non-judicial punishment (NJP) for on or about 12 March 1990, failing to go to his appointed place of duty at his appointed time. The initial punishment to be received was 14 days extra duty and restriction, reduction in rank to private (PV2)/E-2 (suspended), and forfeiture of $189.00 for one month. The reduction, rank, and forfeiture of pay will be suspended and potentially remitted if vacated before 12 July 1990.  
 
5.  On 7 May 1990, the applicant violated Article 134 (General Offenses) by breaking the punishment of restriction. The rest of his punishment was then vacated. 
 
6.  On 11 July 1990, the applicant received NJP for not being at the time prescribed to his appointed place of duty at various times between 11 through 13 June 1990. His 
punishment consisted of reduction to private (PVT)/E-1 and restriction for 14 days, and a suspended forfeiture of pay of $168.00. 
 
7.  Two DA Forms 4856 (General Counseling Form) attest to the applicant consistently not being at his place of assigned duty on 24 October 1990 and 16 November 1990. He then received a DA Form 4856, informing him that his performance and behavior were unsatisfactory and were infractions and considered a pattern of misconduct under the provisions of Army Regulation (AR) 635-200 (Personnel Separations), chapter 14 (misconduct).   
 
8.  On 6 December 1990, he was counseled for five incidents of wrongfully cashing checks against an account with insufficient funds.  
 
9.  On 7 December 1990, he received NJP for wrongfully having a blood alcohol level above 0.05 percent while his assigned unit was in Division Ready Force #1 status. He received 14 days of restriction and extra duty. 
 
10.  On or about 12 December 1990, the applicant received another counseling for missing physical training formation.   
 
11.  On 11 January 1991, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of AR 635-200, chapter 14 (Pattern of Misconduct). The specific reasons: habitual offender for failure to report, DUI, and no rehabilitation potential. The commander recommended an honorable discharge.  
 
12.  On 11 January 1991, the applicant acknowledged receipt of the notification of separation action. He consulted with counsel, and he was advised by his consulting counsel of the bas is for the contemplated action to accomplish his separation for Pattern of Misconduct under the provisions of Chapter 14, AR 635-200, and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights. He understood he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him. He elected to submit a statement in which he explained that he believed he could be rehabilitated into a soldier who behaved appropriately if given an opportunity.  He went on to explain the struggles that made him unmotivated and made him have low morale. He then provided reasons for the various occurrences of him receiving non-judicial punishment and counseling regarding his patterns of misconduct.  He explained that he was not informed of where to be in July 1989, his denied voluntary request to enter the Army Substance Abuse Program and spoke of his struggles due to physical fitness struggles and trying to balance between career opportunities and educational pursuits. 
 
13.  On 14 February 1991, the applicant submitted a DA Form 2823 (Sworn Statement) attesting to the delay of his submission for his appeal of his misconduct discharge process.  PFC H from the Fort Bragg Legal Office provided a memorandum to the applicant's immediate commander to attest to the applicant's attempt to submit appeal documents and the challenges the applicant experienced in submitting timely. 
 
14.  The applicant’s immediate commander formally initiated separation action against the applicant citing his pattern of misconduct. The commander opine that the applicant clearly had no potential for useful service under full mobilization. The intermediate commander recommended approval and requested that the rehabilitation transfer request be waived for the applicant with the reason provided to not be in the Army as it would not produce a quality soldier. 
 
15.  On 25 February 1991, following a legal review for legal sufficiency, the approval authority approved the applicant's discharge with issuance of an under honorable conditions, general discharge.  
 
16.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant discharged from the Regular Army on 12 March 1991 in accordance with AR 635-200, chapter 14-12b, with an under honorable conditions (General) characterization of service, by reason of misconduct – a pattern of misconduct; Separation Code JKM and Reentry Code 3/3C. He completed 2 years, 7 months, and 3 days of active service. He was awarded or authorized: Army Service Ribbon, Expert Badge with Rifle and Hand-Grenade Bars, parachutist Badge, and Army Achievement Medal.  
 
17.  On 30 April 2019, after review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the record, the Board agreed that the applicant's discharge characterization was warranted because of the misconduct. 
 
18.  MEDICAL REVIEW: 
 
    a.  The applicant is applying to the ABCMR requesting reconsideration of his previous request for an upgrade of his character of service from under honorable conditions (general) to honorable. He contends he had mental health condition that mitigated his misconduct.  
   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 in the Regular Army on 10 August 1988; 2) The applicant was 
counseled and/or received non-judicial punishments (NJP) multiple times between April-December 1990 for failing to be on time, breaking restriction, not being at his place of duty, cashing checks with insufficient funds, drinking while on Ready Force #1 status, and missing physical training; 3) The applicant was discharged on 12 March 1991, Chapter 14-12b, with an under honorable conditions (General) characterization of service, by reason of misconduct – a pattern of misconduct; 4) On 30 April 2019, after review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. 
    c.  The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed the supporting documents and the applicant’s military service records. The VA’s Joint Legacy Viewer (JLV) was also examined. 
    d.  On his application, the applicant noted other mental health conditions were related to his request, as a contributing and mitigating factor in the circumstances that resulted in his separation. There was no indication the applicant reported mental health symptoms while on active service. A review of JLV provided evidence the applicant reported mental health symptoms as the result of being discharged from the Army and his frustration with his command at the time of his discharge. He was diagnosed with service-connected chronic adjustment disorder in January 2019, and he has received group therapy for his reported problems with stress management. 
    e.  Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence to support the applicant had condition or experience that mitigated his misconduct.  
Kurta Questions 
    (1)  Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he was experiencing a mental health condition that contributed to his misconduct. The applicant was diagnosed with service-connected chronic adjustment disorder after his discharge in 2019. 
    (2)  Did the condition exist or experience occur during military service?  Yes, the applicant reports experiencing a mental health condition while on active service, and he was diagnosed with service-connected chronic adjustment disorder after his discharge in 2019. 
    (3)  Does the condition experience actually excuse or mitigate the discharge? No, there is sufficient evidence the applicant was diagnosed with a mental health condition after his discharge. Specifically, the applicant was diagnosed in 2019 with chronic adjustment disorder. The applicant reported experiencing mental health symptoms due to his frustration with his command discharging him from the Army and not offering a rehabilitative transfer. Thus, the applicant’s reported mental health condition occurred as a consequence of his misconduct and his resulting discharge. Therefore, there is 
insufficient evidence beyond self-report that the applicant was experiencing a mental health condition which would mitigate his pattern of misconduct.  However, the applicant contends he was experiencing a mental health condition that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration.      
 
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 Medical 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 the 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 
 
: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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20190000443 on 30 April 2019. 
  9/22/2023

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.  Army Regulation (AR) 635-200 sets the separation policies in this regulation to promote the Army's readiness by providing orderly means.  In addition, the following portions of the regulation state: 
 
 a.  Paragraph 1-18 identifies that commanders will ensure adequate counseling and rehabilitative measures before initiating action to separate a soldier. 
 
 b.  Paragraph 3-7 identifies types of administrative discharge/character of service as follows: 
 
  1)  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 inappropriate.   
 
  2)  A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a soldier whose military records are satisfactory but not sufficiently meritorious to warrant an honorable discharge. A 
characterization under honorable conditions may be issued only when the reason for the soldier's separation specifically allows such characterization.  It will not be issued to soldiers upon separation at the expiration of their period of enlistment, military service obligation, or period for which they were called or ordered to Active Duty. 
 
  3)  A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or the good of service.  Examples of circumstances that would qualify for this administrative separation are when the reason for separation is based upon a pattern of behavior that constitutes a significant departure from the conduct expected of soldiers of the Army.  
 
 c.  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. Section III, paragraphs 14-12(b) identifies the pattern of misconduct conditions that subject soldiers to discharge, such as when conduct is prejudicial to good order and discipline.  
 
3.  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 to determine if it would be appropriate to upgrade the characterization of the applicant's service. 
 
4.  On 24 February 2016, the Acting Principal Deputy Under Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to waive the imposition of the statute of limitation for service members requesting discharge upgrades related to PTSD or TBI. Additionally, cases previously considered by either the DRBs, BCMRS, or BCNR without the benefit of the application of the Supplemental Guidance shall be, upon petition, granted de novo review utilizing the Supplemental Guidance. 
 
5.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness guided 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 expressly 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 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 provides standards and principles to guide Boards in the 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, the relative severity of the misconduct, mental and behavioral health conditions, an official governmental acknowledgment that a relevant error or injustice was committed, and uniformity of punishment.  
 
 b.  Changes to the narrative reason for discharge and an upgraded character of service granted solely on equity, injustice, or clemency grounds typically 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. 
 
6.  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 an internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to the Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 
 
//NOTHING FOLLOWS//